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1998 - 1999 - 2000 - 2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROCEEDS OF CRIME BILL 2001
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs
Senator the Honourable Chris Ellison)
Proceeds of Crime Bill 2001
General Outline
The purpose of the Proceeds of Crime Bill is to prevent criminals from being able to enjoy the fruit of their crimes, by depriving them of the proceeds and benefits gained from criminal conduct, and to prevent the re-investment of those proceeds and benefits in further criminal activities.
Strong and effective action to confiscate proceeds of crime assists in attacking the profit-motive of organised crime, including illicit activities involving drug trafficking, people smuggling, money laundering and large-scale fraud.
The Bill proposes a civil forfeiture regime, that is, a regime directed to confiscating unlawfully acquired property, without first requiring a conviction. That new regime will operate in addition to the conviction-based confiscation regime.
The procedures for civil forfeiture will enable confiscation by a simpler civil process, where a court decides whether it is more probable than not that a person committed a serious offence and that property has been derived from that conduct, without first needing a criminal prosecution leading to a conviction before that property that can be confiscated. The civil forfeiture regime will operate in parallel with the existing conviction-based regime.
The Bill also strengthens the provisions relating to the existing conviction-based scheme. Those provisions are contained in the Proceeds of Crime Act 1987 which will remain in effect so that matters being dealt with under that Act may continue.
The Bill introduces provisions for the forfeiture of literary proceeds, which are benefits a person derives from the commercial exploitation of their notoriety from committing a criminal offence. The expression “literary proceeds” is intended to include “cheque-book journalism” related to criminal activity. In general those proceeds tend to fall outside the scope of recoverable proceeds of crime as they are often not generated until after the person has been convicted (and achieved notoriety). The Bill sets out provisions for the confiscation of proceeds derived from the exploitation of criminal notoriety by means of a penalty order against the person.
The Proceeds of Crime Bill has a number of objects intended to enhance the effectiveness of criminal laws of the Commonwealth and external Territories. They are
(a) depriving persons of the fruits of offences;
(b) depriving persons
of literary proceeds gained from exploiting their criminal
notoriety;
(c) punishing and deterring breaches of laws;
(d) preventing
the re-investment of the fruits of offences in further criminal activities;
(e) enabling law enforcement authorities to trace the fruits of
offences;
(f) giving effect to Australia’s obligations under the
Council of Europe Money-Laundering Convention and other international
instruments that deal with confiscating proceeds of crime;
(g) in respect of
offences against the laws of the States, the NT and the ACT, provide for the
effective enforcement of confiscation and restraining in the external
Territories.
Financial Impact
It is not possible to estimate the cost of bringing confiscation proceedings, or of preserving and realising property that is the subject of orders under the Bill. However, it is expected that the revenue generated from the confiscation of property will more than offset the investigative and legal costs in bringing proceedings and administering property.
The amendments are expected to have a significant but unquantifiable financial impact on Government revenue.
ACT Australian Capital Territory
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
ACS Australian Customs Service
ALRC Australian Law Reform Commission
ASIC Australian Securities and Investments Commission
CAA Confiscated Assets Account
CRF Consolidated Revenue Fund
DPP Director of Public Prosecutions
FTRA Financial Transaction Reports Act 1988
IFO interstate forfeiture order
IRO interstate restraining order
LAC legal aid commission
LPO literary proceeds order
NCA National Crime Authority
NT Northern Territory
OT Official Trustee
PPO pecuniary penalty order
PoC Act Proceeds of Crime Act 1987
PART 1-1 PRELIMINARY
1.This is a formal clause which provides for the citation of the Bill.
The Bill commences on a day that it is proclaimed to commence. If it is not
proclaimed to commence within six months of the date of receiving Royal Assent,
it commences on the day following the period ending six months after receiving
Assent.
This clause explains that the definition of many of the terms used in the
Act appear in the Dictionary. The Dictionary is a definitional or
interpretative part of the Act and is located in Chapter 6.
Many of the
terms used in the Act are marked with an asterisk. This denotes that the terms
are defined in the Dictionary. Defined terms are generally marked with an
asterisk only at the start of the relevant clause or subclause . However, the
lack of an asterisk does not mean that a relevant definition does not
apply.
Defined terms are not asterisked in parts of the Act other than
the clauses – for example, they are not asterisked in the headings, notes
or examples.
Subclause 3(6) sets out terms which are used throughout
the Act and have a particular meaning under the Act, but are not marked with an
asterisk.
Clause 4 Application of the Criminal
Code
This clause applies Chapter 2 of the Criminal Code to
the offences in the Act.
This clause sets out the seven major objects of the Act.
They
include preventing persons who commit offences against the Commonwealth and
non-governing Territories from enjoying the proceeds of those offences and
preventing the re-investment of the proceeds of a crime in further criminal
activities. The Act also aims to enable law enforcement authorities to
effectively trace and recover the proceeds and instruments of offences, as well
as identify the benefits obtained by criminals from their offending.
This Part provides a general outline of each chapter of the Act, and
assists in locating particular provisions of the Act (for example the forfeiture
provisions).
Clause 6 General
Clause 6 states that there
are six parts to the Act, and briefly describes each.
Clause 7 The
confiscation scheme (Chapter 2)
Clause 7 identifies where the
restraining order provisions and various confiscatory provisions are located in
the Act, and gives a brief description of each.
Clause 8 Information
gathering (Chapter 3)
Clause 8 sets out the various ways in which
information may be gathered under the Act, and gives a brief description of each
method.
Clause 9 Administration (Chapter 4)
Clause 9
identifies the administrative matters dealt with in Chapter 4 of the Act, and
provides a brief description of each.
Clause 10
Miscellaneous
This clause states that Chapter 5 of the Act deals with
Miscellaneous matters.
Clause 11 Interpreting this Act (Chapter
6)
Clause 11 notes that Chapter 6 of the Act contains the Dictionary
along with other concepts central to the Act, such as ‘proceeds’
‘derived’ and ‘effective
control’.
PART 1-4 –
APPLICATION
This clause provides that the Act binds the Crown in right of the
Commonwealth, of each of the States, the ACT, the NT and Norfolk
Island.
It further provides that nothing in the Act renders the Crown in
right of the Commonwealth, of each of the States, the ACT, the NT and Norfolk
Island liable to be prosecuted for an offence.
This clause extends the Act to acts, matters and things outside
Australia, and to all persons, unless the contrary intention appears.
This clause applies the Act to offences and to criminal convictions for
an offence, which occurred before or after the Act commenced.
Clause
15 Concurrent operation of State/Territory laws
This clause provides
that the Act is intended not to apply to the exclusion of the concurrent
operation of a law of a State or Territory to the extent that the State or
Territory law is capable of operating concurrently with this Act.
Clause 16 Simplified outline of the Part
This clause gives
a basic outline of the ‘restraining order’ provisions contained in
this Part of the Bill.
The restraint of property suspected to be the proceeds or instrument of
crime is a crucial part of the forfeiture regime. This Division provides that a
court with proceeds jurisdiction must issue an order restraining specified
property where certain conditions have been met.
This clause enables a court to make a restraining order where a person
has either been convicted of an indictable offence, or has been or is about to
be charged with such an offence. This clause would be used where
conviction-based forfeiture action, under either Part 2-2 or 2-3 of
Chapter 2, is to be taken, or an application for a conviction-based pecuniary
penalty order is to be made.
Paragraphs 17(1)(a) and (b) enable the
court to prohibit a person from dealing with certain property, or prescribe that
the property may only be dealt with it in ways set out in the order. For
example, a restraining order may prohibit a person from selling or mortgaging a
business, but allow him or her to continue to run the business.
The
restraining order may cover all of the property of the person convicted or
suspected of the offence (‘the suspect’), or specified parts of that
person’s property. In addition, the order can extend to property of
another person which is suspected of being under the effective control of the
suspect, or that is suspected to be the proceeds or instrument of the offence or
offences on which the restraining order is based.
The DPP is not
required to prove that the property is effectively controlled by the person, or
is the proceeds or instrument of the offence or offences. However, an affidavit
setting out the suspicions regarding the nature of the property and the grounds
on which those suspicions have been formed must accompany the application for
the order. Where the court is satisfied that there are reasonable grounds for
suspecting that the property specified in the application is property of the
suspect, or proceeds of the offence etc, the court must specify that property in
the restraining order.
Where the person has not been charged with or
convicted of the offence, the affidavit must also set out the grounds on which
the person is suspected of having committed that offence. The court must be
satisfied that the authorised officer who made the affidavit holds the suspicion
or suspicions on reasonable grounds: paragraph 17(1)(f).
Subclause 17(2)
sets out what property can be covered by a restraining order, and subclause
17(3) states the requirements for an affidavit supporting the application for
the restraining order.
Subclause 17(4) allows the court to refuse to
make the restraining order if it is not in the public interest to do so.
However, the court may only refuse if the offence with which the person is
charged, is about to be charged or is suspected of is not a serious offence.
Subclause 17(5) provides that the court must make a restraining order
even if there is no risk that the property will be disposed of or dealt with. A
restraining order is a condition precedent to the court issuing an examination
order, which is an important tool which the DPP may employ to locate further
property. It is also necessary for a restraining order to be in place for the
automatic forfeiture provisions to apply (see Part 2-3).
Subclause 17(6)
enables a restraining order to operate in relation to property which is not yet
in the possession of the suspect at the time the order is made. For example,
the suspect’s bank account may be restrained, and the court may order that
any other amounts paid into that account after the making of the order are also
restrained.
Clause 18 Restraining orders – people suspected
of committing serious offences
This clause enables a court to make a
restraining order where there are reasonable grounds to suspect that a person
has committed a serious offence within the six years preceding the application
for the restraining order. This clause would be used where either
civil-forfeiture proceedings or civil-based pecuniary penalty order proceedings
were proposed to be instituted.
Paragraphs 18(1)(a) and (b) enable the
court to prohibit a person from dealing with certain property, or prescribe that
the property is only to be dealt with it in ways set out in the
order.
The restraining order may cover all of the property of the person
suspected of the offence (‘the suspect’), or specified parts of that
person’s property. In addition, the order can extend to property of
another person which is suspected of being subject to the effective control of
the suspect, or that is suspected to be the proceeds of the offence or offences
on which the restraining order is based. Property which is characterised only
as an instrument of the offence or offences is not able to be
restrained.
The DPP is not required to prove that the property is
effectively controlled by the person, or is the proceeds of the offence or
offences. However, an affidavit setting out the suspicions regarding the nature
of the property and the grounds on which those suspicions have been formed must
accompany the application for the order. The affidavit must also set out the
grounds on which the person is suspected of having committed the serious
offence.
Where the court is satisfied that there are reasonable grounds
for suspecting that the property specified in the application is property of the
suspect, or proceeds of the offence etc, the court must specify that property in
the restraining order.
A restraining order may only be applied for by
the DPP. Before the court can make a restraining order, it must be satisfied
that the authorised officer who made the affidavit holds those suspicion or
suspicions on reasonable grounds: paragraph 18(1)(f).
Subclause 18(2)
sets out what property can be covered by a restraining order, and subclause
18(3) states the requirements for an affidavit supporting the application for
the restraining order.
Subclause 18(4) provides that the court must
make a restraining order even if there is no risk that the property will be
disposed of or dealt with. A restraining order is the condition precedent to
obtaining a forfeiture order under clause 45 (see clause 45(1)(b)). In
addition, a court may issue an examination order only where there is a relevant
restraining order in force.
Subclause 18(5) enables a restraining order
to operate in relation to property which is not yet in the possession of the
suspect at the time the order is made.
Clause 19 Restraining orders
- people suspected of committing indictable offences etc
This clause
enables a court to make a restraining order where the property which is to be
the subject of the order is suspected of being the proceeds of either an
indictable offence, a foreign indictable offence or an indictable offence of
Commonwealth concern, which occurred in the 6 years preceding the application.
Such an order would be sought where civil-forfeiture proceedings under clause 47
were proposed to be instituted.
The civil forfeiture procedure under
clause 47 does not require the identification of a particular offender, or a
particular offence. However, the DPP is not prevented from bringing
civil-forfeiture proceedings where the identity of the person who is suspected
to have committed the relevant offence is known.
As with clauses 17 and
18, the court may prohibit a person from dealing with certain property, or
prescribe that the property is only to be dealt with it in ways set out in the
order.
A restraining order under this clause covers the property which
is reasonably suspected of being the proceeds of a relevant indictable offence;
instruments can not be restrained. The application may be brought only by the
DPP, and must be supported by an affidavit from an authorised officer setting
out his or her suspicion that the property is the proceeds of a relevant
indictable offence. The affidavit must also include the grounds on which that
suspicion rests. Where the court is satisfied that there are reasonable grounds
for suspecting that the property specified in the application is the proceeds of
a relevant indictable offence, the court must specify that property in the
restraining order.
To make the restraining order, the court must be
satisfied that the authorised officer who made the affidavit holds the suspicion
or suspicions on reasonable grounds.
Subclause 19(3) allows the court to
refuse to make the restraining order if it is not in the public interest to do
so. However, the court may only refuse if the indictable offence which the
property is suspected of being the proceeds of is not a serious offence.
Subclause 19(4) provides that the court must make a restraining order
even if there is no risk that the property will be disposed of or otherwise
dealt with.
Clause 20 Restraining orders – people suspected
of deriving literary proceeds from indictable offences
This clause
provides for a restraining order to be made where a person is reasonably
suspected of having committed an indictable offence, and the person has derived
literary proceeds from that offence. Where a person has derived literary
proceeds in Australia in relation to a foreign indictable offence, the court may
make an order if there are reasonable grounds to suspect that the person has
committed that foreign indictable offence. The use of the phrase
‘reasonably suspected of committing an indictable offence’ does no
prevent a restraining order being sought and made where a person has been
convicted of a relevant offence, or is charged or about to be charged with such
an offence.
A restraining order would be sought under this clause where
proceedings for a literary proceeds order were to be instituted under Part 2-5
of Chapter 2.
There is no time limit as to when the offence which the
person was convicted of or is reasonably suspected of having committed took
place. However, the literary proceeds that may be confiscated are limited to
those accrued after the Act commences. A restraining order made on this basis
may be made in respect of the same conduct which grounded an earlier forfeiture
action as the action would be aimed at confiscating different property.
Paragraphs 20(1)(a) and (b) enable the court to prohibit a person from
dealing with certain property, or to prescribe that the property may only be
dealt with it in ways set out in the order.
The restraining order may
cover all of the property of the person suspected of committing the offence
(‘the suspect’), or specified parts of that person’s property.
In addition, the order can extend to property of another person which is
suspected of being subject to the effective control of the suspect.
The
DPP is not required to prove that the property is effectively controlled by the
person, but an affidavit setting out the suspicion of an authorised officer
regarding the nature of the property, and the grounds on which that suspicion
has been formed, must accompany the application for the order. The affidavit
must also state that the authorised officer suspects that the person has derived
literary proceeds, and if the offence is a foreign offence, that the person
derived those literary proceeds in Australia. The grounds for those suspicions
must also be set out in the affidavit. If the person has not been convicted of
the relevant offence, the affidavit must also set out the grounds on which the
authorised officer suspects the person of having committed the offence.
Where the court is satisfied that there are reasonable grounds for
suspecting that the property specified in the application is property of the
suspect or property of a third party which is subject to the suspect’s
effective control, the court must specify that property in the restraining
order.
Before the court can make a restraining order, it must be
satisfied that the authorised officer who made the affidavit holds those
suspicions on reasonable grounds.
Subclause 20(4) allows the court to
refuse to make the restraining order if it is not in the public interest to do
so. However, the court may only refuse if the relevant offence is not a serious
offence.
Subclause 20(5) provides that the court must make a restraining
order even if there is no risk that the property will be disposed of or dealt
with.
Subclause 20(6) enables a restraining order to operate in
relation to property which is not yet in the possession of the suspect at the
time the order is made.
Clause 21 Refusal to make an order for
failure to give undertaking
This clause empowers the court to refuse
to make a restraining order where the Commonwealth refuses or fails to give an
undertaking as to costs and/or damages flowing from the making and operation of
the order. This is one of the measures of the forfeiture scheme which affords
some protection for the person whose assets are restrained, and ensures that the
DPP only restrain a person’s assets in appropriate circumstances. To do
otherwise would potentially leave the Commonwealth open to a large damages
payment.
Subclause 22(1) provides that a restraining order may only be made in
respect of one suspect. This does not prevent the restraining order restraining
the property of third parties. However, where there are co-offenders a
restraining order will be necessary for the restraint of each
co-offender’s property.
Subclause 22(2) provides that the
restraining order may relate to more than one offence in respect of the same
suspect.
Clause 22 does not prevent an order being made where there is no
identified suspect: refer clause 18.
This clause allows the court to make a restraining order subject to
conditions.
Clause 24 Allowance for expenses
Subclause
24(1) provides that property that is the subject of a restraining order may be
used to meet certain expenses or debts. However, subclause 24(2) provides that
expenses may only be met from the restrained assets if the court is satisfied
that the person cannot meet them from unrestrained assets. This rule applies to
a third party as well as the person defending the forfeiture
action.
Paragraphs 24(1)(a) and (b) provide that restrained assets may be
used to pay the living expenses of a person whose property is restrained, and
any dependants he or she may have. Paragraph 24(1)(c) allows the business
expenses of that person to also be met from the restrained assets.
Paragraph 24(1)(d) provides that payment of the legal expenses of the
person whose property is restrained may be made from the restrained assets;
however, payment of those expenses may only be made if the relevant requirements
in clauses 283 and 284 are met. Payment may only be made from the restrained
assets for expenses incurred defending a criminal charge or contesting
civil-forfeiture proceedings.
The amount of the expenses that may be
met from the restrained assets pursuant to paragraphs 24(1)(a)-(d) is fettered
in each instance by the term ‘reasonable’.
Paragraph 24(1)(e)
provides that the person may also access restrained assets to pay for a specific
debt, which the person has incurred in good faith. For example, the assets may
be used to meet mortgage payments, or the payments on a lease or hire-purchase
agreement.
Clause 25 DPP may apply for a restraining order
Although a
number of Commonwealth agencies will investigate and be involved in forfeiture
actions, only the DPP may apply for a restraining order.
This clause sets out the notice provisions for the obtaining of a
restraining order. The DPP may apply for a restraining order either on notice
to the owner of the property or ex parte. If the DPP requests an ex
parte hearing the court has no discretion to refuse it. An application
would usually be made ex parte where there is a risk that the assets
would be dissipated, or that an investigation may be jeopardised by the
provision of affidavit material (see below and clause 29). If notice is given,
the hearing of the application must be at least fourteen days from the giving of
that notice.
If the DPP gives the owner notice of the application, a copy
of the application and any affidavit must also be provided to that person.
Where the DPP believes that other people may have an interest in the property,
the DPP must also give them notice of the application, and a copy of the
application. The DPP does not have to initially provide those people with a
copy of the affidavit, but if a copy is requested the DPP must comply as soon as
is practicable. (By contrast, if the DPP secures a restraining order ex
parte, the court has discretion to order that all or part of the notice and
affidavit not be given to the owner of the property or other relevant person, or
that the giving of those documents is delayed : see subclause 29(3)).
If
the court directs, the DPP must also give or publish notice to any other person
or class of persons.
A person who is given notice of the application for
a restraining order is able to contest the application at the hearing of the
application.
Clause 27 DPP may choose under which section it
applies for a restraining order
This clause confirms that in
circumstances where the DPP is able to apply for more than one type of
restraining order, the DPP may choose under which provisions it seeks the
order.
An application for a restraining order will often be the first step in
forfeiture proceedings, and may occur before the investigation is complete.
Clause 28 will protect investigative agencies from being compelled to give out
information which could prejudice an investigation or prosecution. This clause
is based on subsection 43(7) of the Proceeds of Crime Act
1987.
DIVISION 3 – EXCLUDING PROPERTY FROM RESTRAINING
ORDERS
Clause 29 Grounds on which the court may exclude property
from a restraining order
Clause 29 enables a person whose property is
the subject of a restraining order under either clause 17, 18 or 19 to have his
or her property excluded from that order. The property able to be excluded, and
the grounds which must be shown for that property to be excluded, depends upon
which basis the restraining order was made. An application under this provision
may be made by the suspect or another person with an interest in the property.
An application for forfeiture is able to be made at either the time the
application for the restraining order is heard or at a later time; the ability
of a person to make an application for exclusion is governed by clauses 30 and
30.
Conviction-based orders
Where the restraining order is
sought or was made under clause 17 – that is, where the order is based on
either the person’s conviction for an offence or their charging, or
proposed charging with an offence - the property able to excluded depends upon
the type of offence he or she has been charged with.
If the offence (or
any of the offences if there are more that one) is a serious offence, the person
must show that the particular property is neither the proceeds nor an instrument
of unlawful activity : paragraph 29(2)(a). ‘Unlawful activity’ is
defined to include an indictable State, Northern Territory or Australian Capital
Territory offence, as well as a Commonwealth offence and a foreign
offence.
If the offence or all of the offences are indictable (not
serious), then the person must show that the particular property is not the
proceeds or instrument of any offence to which the restraining order relates:
paragraph 29(2)(b).
Civil forfeiture: serious offences
If
the order is sought or was made under clause 18 – that is, on the basis
that there are reasonable grounds to suspect that an identified suspect
committed a serious offence within the last six years - the person must show
that the property is not the proceeds of ‘unlawful activity’ :
paragraph 29(1)(c).
Where the restraining order was made on the basis
of an offence against section 15, 24, 29 or 31 of the Financial Transaction
Reports Act 1988, subclause 29(3) enables the court to exclude property from
the restraining order where the suspect adduces evidence on which the court
finds on the balance of probabilities that the conduct which breached the FTR
Act was not done for the purpose of, in preparation for or in contemplation of
any other indictable offence, state indictable offence or foreign indictable
offence.
Specified FTRA offences have been included in the definition of
‘serious offence’ in the Bill where the transaction or transfer
involves at least $50,000, as they are often pointers of money laundering (or
another serious offence) taking place. However, there are a number of other
circumstances in which a person may contravene one of the provisions, but not be
engaged in a serious offence. For example, a person who is considering
divorcing his or her spouse might set up a bank account in a false name and put
money into that account (which is contrary to section 24 of the FTRA). While
this might contravene Commonwealth legislation it is not the type of conduct to
which civil forfeiture based on a serious offence is directed. Where a person
has contravened a relevant provision, but the court finds that it is not a
precursor to another indictable offence, the person cannot be exposed to civil
forfeiture based on a suspicion of committing a serious offence. However, the
person may still be liable for civil forfeiture of the proceeds of the offence
under the provisions relating to conduct constituting indictable
offences.
Civil forfeiture: indictable offences
Where the
order or application is made under clause 19 – that is, where there are
reasonable grounds to suspect that the property the subject of the restraining
order or application is the proceeds of a relevant indictable offence committed
within the last six years - a person wishing to exclude property from the
restraining order must show that the property is not the proceeds of an
indictable offence, a foreign indictable offence or an indictable offence of
Commonwealth concern : paragraph 29(1)(d).
Before the court may release the property on any of those grounds, the court
must also be satisfied that neither a PPO or LPO could be made against the
suspect (if the property is under his or her effective control) or the owner of
the property : subclause 29(4).
Subclause 30(1) enables a person who is given notice of an application
for a restraining order to seek to have specified property excluded from that
order. The person must apply to the court within 14 days of being notified, and
must give the DPP notice of the grounds on which the exclusion is being
sought.
The DPP must provide the person with notice of any grounds on
which it proposes to contest the person’s application, and may appear and
adduce evidence at the hearing of the application.
Once a restraining order has been made, clause 31 enables a person whose
property is restrained by the order to apply to have some or all of the property
excluded.
Subclause 31(1) provides that a person must apply to the court
for such an exclusion within 28 days of the order being made.
Subclause
31(2) restricts the ability of a person who received notice at the application
stage to apply for an order. Whether or not that person appeared at the hearing
for the restraining order, he or she must seek the leave of the court to apply
for an exclusion order under this clause.
Where a person seeks the
leave of the court, subclause 31(3) provides that the court may only grant that
leave if certain circumstances apply. If the person failed to appear at the
hearing, the court may only grant leave if the person had a good reason for not
appearing. If the person did appear, the court may grant leave if that person
now has new evidence (which was not available at the time of the hearing).
Paragraph 31(3)(c) also provides the court with a discretion to grant leave if
there are special grounds.
Subclause 31(4) provides that the person
must give the DPP notice of the application for exclusion and the grounds on
which the exclusion is being sought; subclause 31(6) requires the DPP to provide
the person with notice of any grounds on which it proposes to contest the
person’s application.
Clause 32 ensures that each person whose property is restrained (whether
or not that person had notice of the application for the restraining order) is
given written notice of the restraining order.
If the person does not
already have a copy of the application and any affidavit material, the DPP must
supply that information to the person. However, subclause 29(3) provides the
court with a discretion to order that all or part of the notice or affidavit not
be given to the owner of the property or other relevant person, or that the
giving of those documents is delayed. Subclause 29(4) provides that if the
giving of notice is delayed, the DPP must provide it as soon as practicable
after the end of that period.
This clause provides that where the Commonwealth or a state or territory
has a system of registration for certain types of property the DPP may apply for
a restraining order to be registered with the relevant authority. Once
registration is effected, any person who deals with the property is taken to
have notice of the restraining order for the purposes of clause 35, and not to
be acting in good faith for the purposes of clause 32. Dealing with restrained
property contrary to a restraining order is an offence.
The most likely
property to be registered will be real property; however, motor vehicles, boats
and many other types of property also have relevant registration
systems.
Clause 34 Court may set aside a disposition contravening a
restraining order
Subclause 34(1) enables the DPP to apply to the
court to set aside a disposition or dealing with property which contravenes a
restraining order when that disposition or dealing was either not for sufficient
consideration, or was not in favour of a person who acted in good faith.
Subclause 34(2) provides that the court may set aside such a dealing or
disposition from either the day it occurred, or the day on which the order is
made. If the court sets the disposition or dealing aside on the day of the
order, the court may at that stage declare the rights of a person who acquired
an interest in the property between the time of the dealing or disposition and
the court order.
This clause would enable all gifts of restrained
property to be set aside, as no consideration is exchanged when making a gift.
This clause would also catch transactions where there was sufficient
consideration, but the person buying the restrained property knew that the
property was restrained, and thus acted in bad faith. The court may choose to
set the transaction aside on the day of the order, and declare that such a
person had no right or interest in the property, but was entitled to a refund of
the consideration he or she paid for the property.
However, a person who
acted in good faith and provided sufficient consideration would not be subject
to the transaction being set aside.
Subclauses 35(1) and (2) create offences in relation to contravening
restraining orders.
Under subclause 35(1) it is an offence to dispose of
or otherwise deal with restrained property in contravention of a restraining
order where the person knows or is reckless as to whether the property is
covered by a restraining order.
Under subclause 35(2), a person is
guilty of an offence if he or she deals with the property in contravention of a
restraining order and the particulars of that order were recorded on a register,
pursuant to subclause 31(1) or he or she was notified of the making of the
restraining order under clause 29.
The maximum penalty that may be
imposed for each offence is imprisonment for 5 years, a fine of 300 penalty
units, or both.
Clause 36 Court may order Official Trustee to take custody and
control of property.
This clause enables a court to order the
Official Trustee (OT) to take custody and control of restrained property where
the court considers it necessary to do so. For example, the court may order
this if there is a risk that the property would otherwise be dealt with contrary
to the restraining order; alternatively, the property may require the OT to
manage it to ensure it does not lose value.
Subclause 37(1) enables a court to make orders ancillary to a restraining
order at either the time the order is made, or at a later time. Paragraphs
37(1)(a)-(e) set out types of ancillary orders that the court may make; however,
the court is not restricted to only those ancillary orders.
Paragraph
37(1)(a) enables a court to make an order varying the property covered by the
restraining order. For example, the court may order the inclusion of property
whose existence is discovered in an examination.
Under paragraph 37(1)(b)
a court can make an order varying a condition of the restraining order.
The court may also amend the need for the DPP to provide an undertaking
under clause 21: paragraph 37(1)(c).
Paragraph 37(1)(d) enables a court
to make an order directing the owner of property to give a sworn statement about
the particulars of the property, or that person’s dealings with the
property. The court may make the order in respect of a director of a body
corporate which owns property. For example, the DPP may apply to the court for
an order in respect of a director to establish whether a person has effective
control over a piece of property.
Paragraph 37(1)(e) enables a court to
make ancillary orders with respect to the OT having custody and control of
restrained property. Such an order may regulate the way in which the OT
performs its functions or powers, determines questions relating to the property
(such as the liabilities of the owner of the property in the custody and control
of the OT) or direct a person to do anything necessary or convenient to enable
the OT to take custody and control of the property.
Pursuant to
paragraph 37(1)(f), the court may make an ancillary order giving directions
about the operation of the restraining order and a forfeiture order which covers
the same property as the restraining order or a PPO or LPO that relates to the
same offence as the restraining order.
The court may also, pursuant to
paragraph 37(1)(g) order a person whose property is subject to a restraining
order and with property outside of the jurisdiction to do anything necessary or
convenient to bring it into the jurisdiction. Failure to comply with this order
is an offence punishable by five years’ imprisonment or 300 penalty units
or both: see clause 38. This enables a court to make orders in relation to all
of a person’s property, or to take appropriate action against a person who
refuses to bring all of his or her assets into the
jurisdiction.
Subclause 37(2) provides that the DPP, the owner of
restrained property, the OT (where the OT has been directed to take custody and
control of the property) and any other person by leave of the court may apply to
the court for an ancillary order. The court may not make an ancillary order of
its own motion.
Subclause 37(3) ensures that each party who is entitled
to make an application for an ancillary order is given notice of any order which
is sought.
Subclause 37(4) makes it clear that an ancillary order may
be made at either the time that the restraining order is made or at any time
thereafter.
If a restraining order, or part of the restraining order,
ceases to be in force because the property it covers is forfeited, or that
property was covered by a PPO or LPO which has been satisfied (see subclauses
43(4) and (5)), that alone does not cause any orders ancillary to the
restraining order to cease: subclause 37(5).
Clause 38 Contravening
ancillary orders relating to foreign property
If a person is ordered
by the court to bring his or her property into the jurisdiction, and contravenes
that order, the person is guilty of an offence under clause 38, and liable to 5
years’ imprisonment or a fine of 300 penalty units, or both.
Clause 39 When a restraining order is in force
This clause
establishes that a restraining order comes into force upon the order being made.
Clause 40 Application to revoke a restraining
order
Subclause 40(1) enables a person who was not given notice by
the DPP of the application for a restraining order to apply to revoke that
order. The person must apply within 28 days of being given notice that the
order has been made. This may apply where the application was made ex
parte, or where the application was made on notice, but the person was not
given notice (for example, their interest in the property was not known at the
time of the application). The person must provide notice to the DPP and the OT
of the application and the grounds on which the application is
made.
Subclause 40(3) ensures that the restraining order remains in force
throughout revocation proceedings until revoked by the court.
Subclause
40(4) allows the DPP to introduce additional evidence at the hearing of the
application to revoke the order. Subclause 40(4) provides that the court may
revoke the restraining order if it is satisfied that there is no basis on which
to make the order at the time that the revocation application is considered.
Taken together, those subclauses allow the court to look at the material
supporting the grounds for the restraining order not at the time that the
original order was made, but at the time an applicant seeks to have it revoked.
This may be some time from when the original order was made.
Clause 41
Notice of revocation of a restraining order
This clause provides that
where a restraining order is revoked, the DPP must give written notice of that
revocation to the owner of the property and other persons with an interest in
the property. However, the clause does not require the DPP to give notice to
the applicant.
Clause 42 Giving security etc. to revoke etc. a
restraining order
Subclause 42(1) enables a suspect whose property is
restrained to have the restraining order revoked or amended to exclude certain
property upon him or her providing the court with a security that would meet any
liability that may be imposed on the suspect under the Act. The suspect must
provide the DPP with written notice of the application.
Unlike the other
revocation provisions, the suspect does not have to show that the property is
not the proceeds or instrument of an offence, or otherwise dispute the nature of
the property.
Subclause 42(2) enables a third party whose property is
restrained to have the restraining order revoked or certain property excluded
from the order upon providing the court with an undertaking. That undertaking
is not required to involve a monetary amount, or be able to cover any possible
liability imposed under the Act – the only requirement is that it be
satisfactory to the court.
Clause 43 Cessation of restraining
orders
Clause 43 establishes the various ways in which a restraining
order will cease to operate.
Effect on restraining orders of
withdrawal of charges, acquittals etc
A restraining order which was
made on the basis of a conviction, charge or imminent charge, will cease to be
in force at the expiration of 28 days from any of the events set out in
paragraphs 43(1)(a)-(c) occurring.
Those paragraphs relevantly provide
that a restraining order will cease if the suspect is charged with an offence
and the charge is withdrawn, if a suspect is acquitted of the offence or all of
the offences with which he or she was charged, or if a suspect’s
conviction is quashed.
However, if a confiscation order relating to the
offence or offences on which the restraining order was based has been made, or
there is an application for such an order before the court, the restraining
order does not automatically cease to be in force -paragraphs 43(1)(d) and (e).
Alternatively, if the suspect is charged with a related offence (as defined), or
an application for confirmation of a forfeiture order (which relates to the
offence) has been made, the restraining order does not cease to be in force :
paragraphs 43(1)(f) and (g).
Restraining orders if there is no
conviction etc.
Subclause 43(2) provides that if the suspect has not
been convicted of, or charged with, the offence, or at least one of the
offences, to which the restraining order relates, within 28 days of the
restraining order being made, and no application for a confiscation order or
confiscation order has been made in relation to that offence, the restraining
order immediately ceases to be in force.
Restraining orders and
forfeiture orders
Subclause 43(3) establishes a number of ways in
which a restraining order may cease to be force.
Sub-paragraph
43(3)(a)(ii) provides that a restraining order ceases to be in effect in
relation to particular property if that property is excluded from the
restraining order. The restraining order would remain in effect if there was
other property restrained which was not yet forfeited.
Where a forfeiture
order is made in relation to restrained property, the discharge or cessation of
that forfeiture order will cause the restraining order to also cease: paragraph
sub-paragraph 43(3)(a)(iii). A restraining order covering property that is
subsequently excluded from forfeiture pursuant to clause 90 ceases to be in
force in relation to that excluded property : sub-paragraph
43(3)(a)(iv).
Where a court refuses an application for a confiscation
order in respect of restrained property, and either the time for an appeal
against that refusal has expired without an appeal being lodged, or an appeal
has lapsed or been dismissed and finally disposed of, the restraining order
immediately ceases to be in force in relation to that property : see
sub-paragraph 43(3)(a)(i) and paragraph 43(3)(b).
However, where
relevant, paragraphs 31(c) and (d) provide additional criteria that must be
present before the restraining order can cease. An order cannot cease if there
is an application for another confiscation order which is yet to be determined,
and that application relates to the offence on which the restraining order is
based, or a related offence. Where relevant, a restraining order cannot cease
if there is in force another confiscation order which relates to the offence on
which the restraining order is based.
Where property is forfeited under
Division 4 of Part 2-2 (civil forfeiture, conviction-based forfeiture for a
non-serious offence), or Division 1 of Part 2-3 (automatic forfeiture on
conviction of a serious offence) the restraining order ceases to operate in
relation to that property: subclause 43(4)
Restraining orders,
pecuniary penalty orders and literary proceeds orders
Subclause 43(5)
provides that property which was restrained in contemplation of a confiscatory
action immediately ceases to be restrained under the restraining order if a PPO
or LPO is satisfied or the property covered by the restraining order is sold or
disposed of to satisfy the PPO or LPO. The restraining order also immediately
ceases if the PPO or LPO is discharged or otherwise ceases to have
effect.
Restraining orders and instruments owned by third
parties
Subclause 43(6) provides that, in spite of subclause 43(1),
where the property of a third party (which is not under the effective control of
the suspect, and is not the proceeds of the offence to which the order relates)
is restrained as an instrument of the relevant offence, the restraining order
ceases to be in effect in relation to that instrument if the suspect has not
been charged with the offence or related indictable offence within 28 days of
the restraining order being made. This ensures that third party instruments
only continue to be restrained in circumstances where they could be
forfeited.
PART 2-2- FORFEITURE
ORDERS
Clause 44 Simplified outline of this
Part
This clause gives a basic outline of the ‘forfeiture
order’ provisions contained in this Part of the Bill.
Clause 45 Forfeiture orders - conduct constituting serious
offences
Civil-forfeiture: serious offences
Subclause 45(1) requires a court, on the application of the DPP, to make a ‘civil-forfeiture’ order against property which has been restrained under the Bill for at least six months if the court is satisfied that the person engaged in conduct which constituted a serious offence within the 6 years prior to the making of the application for the restraining order. Thus, the court is required to make a forfeiture order in relation to all property which has not been the subject of a successful application for exclusion from restraint (under the exclusion provisions of Part 2-1 of Chapter 2), or from forfeiture (under the exclusion provisions of Division 5 of this Part).
Unless an application for exclusion from forfeiture is made under clause 70, the court would not be required for the purposes of making a forfeiture order to be satisfied about the nature of the property being forfeited. The forfeiture order may apply to any property of the suspect or another person which could have been restrained under clause 18.
To make a civil forfeiture order, the court must find to the civil standard (‘on the balance of probabilities’) that the person engaged in conduct constituting a serious offence within the last six years. ‘Serious offence’ is defined in Part 6-2. The serious offence need not be the same offence on which the restraining order was based, and a particular offence need not be proved. It is sufficient for the court to be satisfied that any serious offence has been committed.
Subclause (3) states that the raising of a doubt as to whether a person
engaged in conduct constituting a serious offence is not a sufficient ground on
which a court can find that a person did not engage in such conduct. This
provision is based on subsection 22(6) of the NSW CARA.
Subclause (4)
provides safeguards in relation to certain offences against the Financial
Transaction Reports Act 1988 which are serious offences by virtue of being
specifically included in the definition. ‘Serious offence’ is
defined to include offences against sections 15, 24, 29 and 31 of the
Financial Transaction Reports Act 1988 where the transaction or transfer
involves at least $50,000. Those offences are included on the basis that they
are often an indicator of money laundering or other serious criminal activity.
It is intended that those offences be regarded as serious offences within the
Act if they occur in certain circumstances. Where it can be shown that any such
offence is not preparatory to another offence, the person should not be exposed
to civil forfeiture for a serious offence. In those circumstances, subclause
45(4) enables a court to refuse an application for a serious offence forfeiture
order. However, other avenues for civil forfeiture may be
available.
Clause 46 Forfeiture orders – convictions for
indictable offences
Conviction-based
forfeiture
Clause 46 enables a court to make a forfeiture order, on
the application of the DPP, in relation to the proceeds or instruments of an
indictable offence of which a person has been convicted. Unlike civil-forfeiture
based on conduct constituting serious offences (clause 45) or automatic
forfeiture (Part 2-3)), it is only the proceeds or instruments of the particular
offence or offences of which the person has been convicted which can be
forfeited under this clause. For example, if a person is convicted of
defrauding social security of $5,000, it is only the proceeds or instrument of
that particular offence that may be forfeited under this provision. However,
the application of the clause is not restricted to the property of the person
convicted of the particular offence - property in the possession of a third
party which falls within the definition of proceeds or instrument (see clause
325), is also liable to forfeiture.
Clause 46 can be applied where a
person has been convicted of one or more indictable offences even if these also
include one or more serious offences. Under Part 2-3, property is liable to
automatic forfeiture where a person is convicted of a serious offence. However,
automatic forfeiture is only available if there is a restraining order under
Part 2-1 of this Chapter. In situations where there is no restraining order,
clause 46 can be relied upon to make a forfeiture order in relation to proceeds
or instruments of the offence.
Where the court is satisfied (to the
civil standard) that particular property is the proceeds of one or more of the
offences for which the person was convicted, the court must make an order
forfeiting that property under subclause 46(1). Forfeiture may be ordered under
this subclause even if a particular piece of property could be classified as
both proceeds of one offence and an instrument of another offence.
If the
court is satisfied that property is not proceeds of the offence or offences, but
is an instrument of any such offence, the court has a discretion as to whether
to order forfeiture of that property: subclause 46(2). Subclause 46(3) sets out
the matters that the court may have regard to in determining whether or not to
order forfeiture of instruments. Discretion is afforded in relation to the
forfeiture of instruments of crime in recognition that forfeiture may be unduly
harsh in some circumstances. For example the court may find that a hire car is
an instrument of an indictable offence, and thus liable to forfeiture. However,
having regard to the use that is ordinarily made of the car (pursuant to
paragraph 46(3)(b)), the court may decline to order forfeiture.
Clause
47 Forfeiture orders – conduct constituting indictable offences
etc.
Clause 47 provides for civil forfeiture orders for circumstances
where conduct involves indictable offences. The court must make such an order,
on the application of the DPP, in relation to property which has been restrained
for six months under Part 2-1 of this Chapter and no application for exclusion
from restraint has been made or is on foot. If an application for exclusion
from restraint has been made, the court is also required to find (on the civil
standard) that the property is the proceeds (as defined) of an indictable
offence, a foreign indictable offence or an indictable offence of Commonwealth
concern (each of those terms is defined in Part 6-2) committed within the 6
years preceding the application for the restraining order.
It is not necessary for the court to make a finding either that a particular
offence has been committed or that a particular person committed any offence:
subclause 47(2).
Before the court may make a civil forfeiture order
under clause 47 it must be satisfied that the DPP has taken reasonable steps to
identify and notify any person with an interest in the property: paragraph
47(1)(d).
Clause 48 Existence of other confiscation orders
Clause 48 makes it clear that the existence of another type of
confiscation order in relation to a particular offence does not affect the
ability of the court to make a forfeiture order in relation to that same
offence.
Clause 49 Making of forfeiture order if person has
absconded
Clause 49 imports two additional elements of which the
court must be satisfied before a forfeiture order can be made against a person
deemed to have been convicted of an indictable offence by virtue of the
operation of paragraph 326(1)(d).
First, the court must be satisfied, to
the civil standard, that the person did abscond (as defined) in connection with
the indictable offence: paragraph 49(a).
Secondly, either of the elements
set out in paragraph 49(b) must occur: the person must have been committed for
trial for the offence, or the court hearing the application for the forfeiture
order must be satisfied that on the available evidence a reasonable jury could
lawfully find the person guilty of the offence.
This ensures that a
forfeiture order is made in relation to a deemed conviction only after a court
has assessed the evidence of the offence, thus preventing a forfeiture order
being made in circumstances where there was insufficient evidence to require the
person to stand trial for the offence.
Clause 50 Jurisdictional issues concerning forfeiture
orders
Subclauses 50(1)-(3) clarify jurisdictional issues that may
arise to ensure that courts have the ability to make orders made under this
Part.
DIVISION 2 – OTHER RELEVANT MATTERS WHEN A COURT IS
CONSIDERING WHETHER TO MAKE FORFEITURE ORDERS
Clause 51
Presumption in certain cases that property is an instrument of an
offence
When a court is hearing an application for a
conviction-based forfeiture order under clause 46, clause 51 provides a
rebuttable presumption that property in a person’s possession at the time
of, or immediately after, the commission of an offence, was used in, or in
connection with, the offence.
This presumption is
established by evidence of the property being in the person’s possession
at the relevant time. Unless there is evidence that tends to show the property
was not used in, or in connection with, the offence, the court must presume that
the property was so used, and thus is an instrument of the
offence.
However, if such evidence is provided to the court, the court
cannot make a forfeiture order unless it is satisfied that the property was used
or intended to be used in, or in connection with, the commission of the
offence.
This clause is based on subsection 19(6) of the Proceeds of Crime Act
1987.
Clause 52 Forfeiture orders can extend to other interests
in property
This clause allows the court to specify in a forfeiture
order interests in property other than the interest of the person who is the
subject of the order. This may be done if the proceeds from the disposal of the
combined interests is likely to be greater than the proceeds of the interests if
disposed of separately, or if disposing of the interests separately would be
impractical or significantly more difficult than disposing of the combined
interests.
If the court does specify other interests in the property,
the court may make ancillary orders to protect a person who has one or more of
the other interests. Such orders may include an order directing the
Commonwealth to pay the person the value of their interest, or an order
directing that specified other interests in the property be transferred to the
person.
For example, where property is owned by joint tenants the
disposal of the entire property may be the only way to realise the value of that
property. In such a situation the court could specify that the interest of the
innocent joint tenant is to be included in the forfeiture order, but protect
that person’s rights by making an ancillary order that the Commonwealth
pay that person half of the proceeds from the sale.
In deciding whether
to make an ancillary order, the court must have regard to the nature, extent and
value of the person’s interest in the property concerned, the nature,
extent and value of the any other person interest claimed in the property, and
any other matter that the court considers relevant.
Clause 53
Forfeiture orders must specify the value of forfeited property
Clause
53 provides that the court must specify in any forfeiture order, the value of
any property (other than money) specified in the order.
Clause 54 A
person may buy back forfeited property
This clause enables a person
who had an interest in forfeited property to buy back the interest, if the court
finds, amongst other matters, that that is not contrary to the public interest.
The clause is based on existing provisions in the Proceeds of Crime Act
1987.
Clause 55 The court may also make supporting
directions
Clause 55 provides that if the court makes a forfeiture
order, the court has power to give all directions that are necessary or
convenient for giving effect to the order. Where the court makes a forfeiture
order that specifies registrable property, the court may give a direction to an
officer of the court to do what is necessary and reasonable to obtain possession
of any document necessary for the transfer of the property. For example, if the
court makes an order forfeiting real property, it may give a direction to an
officer of the court to obtain the Certificate of Title of that property. The
clause is based on existing provisions in the Proceeds of Crime Act
1987.
Clause 56 DPP may apply for a forfeiture order
This
clause empowers the DPP to apply for a forfeiture order. If the application
relates to a person’s conviction of an indictable offence the application
must be made before the end of the period of six months after the conviction
day.
Clause 57 Additional application for a forfeiture order
Clause 57 prohibits the DPP from applying for a forfeiture order in particular circumstances without the leave of the court. The prohibition prevents the DPP from seeking to make an application for forfeiture under a clause of Division 1 of this Part if an application has already been under that clause in relation to the particular offence, and that application has been finally determined. Similarly, if an application for forfeiture has been made and finally determined in relation to an offence under another law of the Commonwealth or a law of a non-governing Territory, the DPP cannot apply for a Division 1 forfeiture order in relation to that offence without the leave of the court.
Subclause 57(2) prescribes that the court may only give leave in particular circumstances – namely if the court finds that the property to which the new application relates was identified only after the first application was determined, necessary evidence became available only after the first application was determined, or it is in the interests of justice to grant the leave.
A forfeiture order may be a civil-forfeiture order relating to a serious
offence (clause 45), a conviction-based forfeiture order (clause 46) or a
civil-forfeiture order relating to an indictable offence (clause 47). If one of
those orders is sought and finally determined (eg a conviction-based order under
clause 46) clause 57 prevents the DPP from making a second application under
that clause in relation to the same offence. However, the DPP may apply for a
different type of forfeiture order (for example a civil-forfeiture order) or may
seek a LPO or PPO (as they are not forfeiture orders). Clause 57(3) makes this
clear.
Clause 58 Notice of application
This clause
requires the DPP to give written notice of an application for a forfeiture order
to a person whose conviction of an offence has led to the application.
The DPP must also give notice to any person who claims an interest in
property covered by an application and to any person who the DPP reasonably
believes may have an interest in that property. In addition, the court may
direct the DPP to give or publish notice of an application to a specified person
or class of persons at any time before the court finally determines the
application, and may specify the time and manner of
publication.
Clause 59 Amending an application
Clause 59
provides that the court hearing an application for a forfeiture order may amend
the application either on the application of the DPP or with the consent of the
DPP. However, the court must not include additional property unless the court
finds either that the property was not capable of identification when the
application was originally made, or that necessary evidence became available
after the application was originally made. The DPP must give written notice of
an application for an amendment to include additional property in the
application for a forfeiture order to any person who the DPP believes has an
interest in that additional property. Any person who claims an interest in that
additional property may appear and adduce evidence at the hearing of the
application to amend.
Clause 60 Procedure on application
Clause 60 provides for
matters of procedure in the hearing of an application for a forfeiture order.
Subclause 60(1) provides that any person who claims an interest in property included in an application for a forfeiture order may appear and adduce evidence at the hearing.
Subclause 60(2) provides that, in respect of an application for a forfeiture order that relies on a person’s conviction of an indictable offence, the court may have regard to the transcript of any proceeding against the person for that offence or, if the person is taken to be convicted of that offence because of the operation of paragraph 326(1)(c) (where a court has taken account of the offence in passing sentence on the person for another offence) any proceeding in respect of that other offence. The court may also have regard to any evidence given in those proceedings.
Subclause 60(3) permits the court to make a forfeiture order if a person
entitled to notice fails to appear at the hearing.
This clause enables a court to hear and determine an application for a
forfeiture order made in relation to a person who was convicted of an indictable
offence before that same court. The clause provides that in those circumstances
the court may exercise its powers in relation to the order regardless of whether
or not the court is constituted in the same manner as when the person was
convicted of the indictable offence.
Clause 62 What property is forfeited and when – general
rule
Clause 62 provides that property specified in a forfeiture order
vests absolutely in the Commonwealth at the time the order is
made.
Clause 63 First exception – registrable
property
This clause provides an exception to the rule in clause 62
for registrable property. If property specified in the forfeiture order is
registrable property, the property vests in equity in the Commonwealth but does
not vest in the Commonwealth at law until the registration requirements have
been completed. Paragraph 63(1)(b) gives the DPP power to do, on behalf of the
Commonwealth, anything necessary or convenient to give notice of or protect the
Commonwealth’s equitable interest in the property. Paragraph 63(1)(c)
provides that the Commonwealth is entitled to be registered as owner of the
property. Paragraph 63(1)(d) provides that the Official Trustee has power on
behalf of the Commonwealth to do anything necessary or convenient to obtain the
registration of the Commonwealth as the owner. The Official Trustee’s
powers under this paragraph include executing any instrument required to be
executed by a person transferring an interest in property of that kind :
subclause 63(3).
Subclause 63(2) ensures that any action by the DPP to protect the
Commonwealth’s interest in the property is not taken to be a dealing with
the property for the purposes of subclause 65(1). Subclause 65(1) prescribes
when the Commonwealth can begin to deal with forfeited
property.
Clause 64 Second exception – if a joint owner dies
before the order was made
This clause provides an exception to the
rule in clause 62 (when property vests in the Commonwealth) for property
specified in a forfeiture order where a joint owner of the property died before
the forfeiture order was made, but after the DPP applied for the order or while
a restraining order covering the property was in force. By force of clause 64
the property is taken to have vested in the Commonwealth immediately before the
person’s death. Any restraining order is also taken to have continued to
apply to the property as if the person had not died. The effect of this clause
is that the property does not form part of the deceased’s
estate.
Clause 65 When can the Commonwealth begin dealing with
forfeited property?
This clause prescribes when the Commonwealth and
persons acting on its behalf can dispose of, or otherwise deal with, property
specified in a forfeiture order.
Forfeited property can only be dealt
with after the end of the period in which the person could appeal the forfeiture
order – if such an appeal has been lodged, the property can not be dealt
with until the appeal lapses or is finally determined. Where the forfeiture
order was made in relation to the person’s conviction (ie under clause
46), the property may only be forfeited at the end of the appeal period in
relation to the person’s conviction for an offence. Again, if an appeal
has been lodged the property cannot be dealt with until that appeal is
determined.
Those provisions ensure that property is not dealt with
prematurely, as some property may not be recoverable once dealt with (eg a house
or other unique possession). However, if there is cause to dispose or deal with
the property prior to the latter of the times set out in subclause 65(1),
subclause 65(2) enables early dealing to occur as long as the court gives leave
and the dealing is made in accordance with any directions of the
court.
Where the person is taken to have been convicted by reason of
paragraph 326(1)(b) (the person is charged with, and found guilty of the offence
but is discharged without conviction) an appeal against the finding of the
person guilty of the offence is regarded as an appeal against the conviction.
Where the person is taken to have been convicted of the offence by reason of
paragraph 326(1)(c) (the offence is taken into account in sentencing for another
offence) an appeal against the person’s conviction of the other offence is
regarded as an appeal against the conviction.
Clause 66 How must the
Commonwealth deal with forfeited property?
This clause provides for
the way in which the Commonwealth must deal with forfeited property. If the
forfeiture order is still in force at the end of the later time mentioned in
subclause 65(1), the Official Trustee (on the Commonwealth’s behalf) must,
as soon as practicable, dispose of any property specified in the order that is
not money. The Commonwealth must then apply any amount received from that
disposal, and any money specified in the order, to payment of its remuneration,
costs charges and expenses in connection with the disposal and with any
restraining order that covered the property and pay the balance to the Reserve
in accordance with clause 293.
Subclause 66(2) provides that, where the
Official Trustee is required to deal with the property specified in a forfeiture
order but has not yet begun to deal with the property, the Minister or a senior
Departmental officer authorised for the purposes of the subclause
may direct that the property be alternatively disposed of or otherwise dealt
with. Such a direction may be that property be disposed of in accordance with
provisions of a specified law. That means that under subclause 66(2) the
Minister retains a power to direct that forfeited property be disposed of in
some particular way, for example that it be made available for use by a law
enforcement agency for operational purposes but ultimately sold and the proceeds
paid into the Confiscated Assets Account. That subclause adopts a similar
provision to subsections 20(3A) and (4) of the Proceeds of Crime Act
1987.
Clause 67 Dealings with forfeited
property
Clause 67 creates an offence of dealing with registrable
property which is subject to a forfeiture order before registration of the
Commonwealth’s interest, knowing it to be subject to a forfeiture order.
That clause is based on section 97 of the Proceeds of Crime Act
1987.
DIVISION 5 – REDUCING THE EFFECT OF FORFEITURE
ORDERS
Subdivision A – Relieving
hardship
Clause 68 Relieving certain dependants from
hardship
This clause enables a dependant of a person whose property
is the subject of a civil-forfeiture order (whether based on a serious offence
or an indictable offence) to seek payment from the Commonwealth to compensate
that person for the hardship that would be caused by the forfeiture
order.
Such an order must specify the amount to be paid, and the court
must be satisfied that the amount would relieve the hardship.
Where the
dependant is aged 18 or over, the court must also be satisfied that the
dependant had not knowledge of the conduct the subject of the order. The court
may make an order in respect of more than one dependant.
The specified
amount cannot exceed the difference between the amount the court considers
likely to be received from disposing of the person’s property under the
forfeiture order and the sum the court considers likely to be paid under
paragraph 66(1)(b) (payment of the OT’s costs, remuneration
etc).
Subdivision B – Excluding property from a forfeiture
order
Clause 69 Making exclusion orders
This
clause provides for a court to make orders excluding specified property from a
forfeiture order. An exclusion order is made on application by a person whose
property is specified in the forfeiture order or the forfeiture application.
The application is made to the court that made a forfeiture order, or is hearing
or is to hear an application for a forfeiture order.
Civil-forfeiture
The court must make an exclusion order on application by a person if
the forfeiture order or forfeiture application would be, or is, made against
that person under either clause 45 (civil-forfeiture based on conduct
constituting a serious offence) or clause 47 (civil-forfeiture based on conduct
constituting an indictable offence), and the court is satisfied that the
property sought to be excluded is not the proceeds of ‘unlawful
activity’. ‘Unlawful activity’ is defined to include State,
Northern Territory and ACT indictable offences, as well as indictable offences
against the laws of the Commonwealth, external Territories and foreign
countries.
Civil-forfeiture : third parties
Where the
applicant for an exclusion order is not the person against whom the civil
forfeiture order was made, the court must exclude property if it is satisfied
that the person was not involved in the offence or offences to which the order
relates. In addition, the court must be satisfied that the property to be
excluded is not the proceeds of unlawful activity.
Conviction-based
forfeiture
If the forfeiture order, or application for forfeiture, is
made under clause 46 (conviction-based forfeiture), the court must be satisfied
that the applicant was not in any way involved in the commission of any of the
offences to which the forfeiture order or forfeiture application relates. In
addition, the court must be satisfied that the property to be specified in the
exclusion order is neither proceeds nor an instrument of any of those offences.
Subclause 69(2) sets out the matters that must be contained in an
exclusion order. An exclusion order must specify the nature, extent and value
of the property of the property concerned. It must direct that the property be
excluded from the operation of the relevant forfeiture order. If the property
has vested in the Commonwealth and is yet to be disposed of, the order must
direct the Commonwealth to transfer the property to the applicant. If the
property has vested in the Commonwealth and has been disposed of, the order must
direct the Commonwealth to pay the applicant an amount equal to the value
specified in the order.
Clause 70 Applying for exclusion
orders
Clause 70 sets out the circumstances when a person may apply
for an exclusion order.
Before a forfeiture order has been
made
Prior to a forfeiture order being made, a person may apply for
an exclusion order in respect of property the subject of the forfeiture
application.
After a forfeiture order has been made
Once a
forfeiture order has been made, a person who was afforded notice of the
application for the order but did not appear at the hearing must seek the leave
of the court to apply for an exclusion order : paragraph 70(2)(a). In that
circumstance, the court may grant leave to apply for an exclusion order if it
finds that the person did not attend the hearing for a good reason : paragraph
70(3)(a).
The leave of the court must also be sought by a person who did
attend the hearing of the application, or a person who wishes to make an
application for exclusion more than six months after the date of the forfeiture
order : paragraphs 70(2)(b) and (c).
Where the person appeared at the
hearing of the application for the forfeiture order, the court may give leave if
the court finds that the person now has relevant evidence in connection with the
application that was not available to the person at the time of the hearing of
the application for the forfeiture order : paragraph 70(3)(b). If more than six
months have elapsed, the court may give leave to apply if the court finds that
the person’s failure to apply was not due to any neglect by the person :
paragraph 70(3)(c). Paragraph 70(3)(d) enables the court to also give leave to
apply if there are other special grounds for granting the
leave.
Clause 71 Giving notice of matters relevant to an
application
Clause 71 provides that an applicant for an exclusion
order must give the DPP written notice of the application and the grounds on
which the order is sought. The DPP may appear and adduce evidence at the
hearing of the application for the exclusion order. Subclause 71(2) provides
that the DPP must give the applicant notice of any grounds on which it proposes
to contest the application. However, the DPP does not have to give notice of
the grounds until it has had a reasonable opportunity to examine the applicant
under Part 3-1.
Clause 72 When an application can be
heard
Clause 72 provides that an application for an exclusion order
must not be heard until the DPP has had a reasonable opportunity to examine the
applicant under Part 3-1.
Subdivision C – Compensating for
the proportion of property that did not involve proceeds of an
offence
Clause 73 Making compensation
orders
Clause 73 ensures that where property forfeited as proceeds
under a forfeiture order was acquired with both the proceeds of an offence and
legitimately obtained funds, the owner of the forfeited property is properly
compensated for that legitimately obtained part of the property.
For
this to occur, the court must be satisfied that when the property first became
proceeds of an offence, a proportion of the value of that property was not
acquired using the proceeds of any offence. Once the court is satisfied of this
(on the civil standard), the court is compelled to make a compensation order :
subclause 73(1).
The order must specify the proportion of the value of
that property that was not acquired using the proceeds of any offence, and
direct the Commonwealth to dispose of the property and pay the applicant that
proportion of the sum received after the costs and disbursements of the OT are
paid.
For example, if the forfeited property was a $200 000 house which
had been obtained with $150 000 from the proceeds of an offence and $50 000 from
legitimately obtained income, the person would be entitled to 25% of the value
of the house. After the house is disposed of and the costs etc of the OT have
been met (as set out in paragraph 66(1)(b)), the person would be entitled to
compensation equal to 25% of the net amount.
Clause 74 Applying for
compensation orders
Clause 74 provides that a person whose property
is specified in a forfeiture order may apply for a compensation order but the
person must apply for the compensation order within six months after the
forfeiture order was made or obtain leave from the court to apply for the
compensation order.
Clause 75 Giving notice of matters relevant to
an application
Clause 75 provides that an applicant for a
compensation order must give written notice to the DPP of the application and
the grounds on which the order is sought. The DPP may appear and adduce
evidence at the hearing of the application. The DPP must give the applicant
notice of the grounds on which it proposes to contest the
application.
DIVISION 6 – THE EFFECT ON FORFEITURE ORDERS OF
CONVICTIONS BEING QUASHED
Clause 76 Forfeiture order made under section 45 or 47 unaffected by quashing of conviction
Where a civil-forfeiture order is made against a person in respect of a particular offence, the person’s conviction of that offence and subsequent quashing of that conviction does not affect the forfeiture order. This applies to both civil forfeiture based on conduct constituting a serious offence (clause 45) and civil forfeiture based on conduct constituting an indictable offence where there is an identified suspect and offence (clause 47).
Clause 77 Discharge of forfeiture order made under section 46 on quashing of conviction
Clause 77 provides that a conviction-based forfeiture order (made under
clause 46) is discharged 14 days after the subsequent quashing of the conviction
unless the DPP has applied for an order confirming the forfeiture within that
time. If the DPP makes such an application, the forfeiture order is not
affected by the quashing of the conviction until that application is
determined.
Clause 78 requires the DPP to give written notice of the application for
confirmation of the forfeiture order to the person whose conviction was quashed,
to any person who claims or claimed an interest in the property prior to the
forfeiture, and to any other person who the DPP reasonably believes may have had
an interest in the property prior to the forfeiture. A court may also direct
the DPP to publish notice of the application in a specified time and
manner.
Clause 79 enables any person claiming an interest in the property covered
by the forfeiture order to appear and adduce evidence at the hearing of the
application for confirmation of that order. The clause also empowers the court
determining the application to have regard to the transcript of proceedings
against the person for the offence, and any evidence given in those proceedings,
of which the person was convicted.
Clause 80 empowers a court, on the application of the DPP, to confirm the
forfeiture order relating to a conviction which has been quashed if it is
satisfied that it could have made a civil forfeiture order in relation to either
the person or the property under clause 45 or clause 47.
Clause 81 sets out the effect of the court’s decision to confirm or not confirm a forfeiture order.
If the court confirms that forfeiture order on the basis that it could have made a civil-forfeiture order based on conduct constituting a serious offence in relation to the offence for which the person’s conviction has now been quashed, subclause 81(1) provides that the entire forfeiture order is not affected by the quashing.
However, if the court confirms the forfeiture order on the ground that it could have made an civil forfeiture order based on conduct constituting an indictable offence in relation to the particular offence, the forfeiture order remains in force only to the extent that it covers the proceeds of that offence. If the order covers other property, it is discharged in relation to that property.
Subclause 81(3) provides that where the court declines to confirm the forfeiture order, the entire order is discharged.
Clause 82 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order
Clause 82 prevents the Official Trustee from dealing with property forfeited under a forfeiture order between the date of the quashing of the conviction to which the forfeiture order relates and the determination of an application for confirmation of that order.
DIVISION 7 - MISCELLANEOUS
Clause 83 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction
Where a forfeiture order relating to particular property is discharged, clause 83 requires the DPP to give written notice of that discharge to anyone the DPP believes had an interest in that property prior to the forfeiture order being made. In addition, the court may direct the DPP to publish notice to a specified person or class or persons, or in a specified time and manner. The notice must advise the person of their right to apply for the transfer of the interest or its value.
Clause 83 applies whether the forfeiture order was discharged on appeal against the order, or wholly or partly discharged due to the conviction of which the order was made being quashed : paragraphs 83(1)(a)-(c).
Where a forfeiture order is discharged on appeal or by the quashing of a
conviction, clause 84 requires the Minister to arrange for the return of
interests in property forfeited under a forfeiture order. If the interest is no
longer vested in the Commonwealth (and thus cannot be returned) the Minister is
required to arrange for the payment to the person of an amount equal to the
value of the person’s interest.
Clause 85 Person with interest
in forfeited property may buy back the interest
Where the court has ordered the transfer of an interest in forfeited property to a person pursuant to clause 54, clause 85 facilitates the return of that property upon payment by the person to the Commonwealth of the value of that interest. This clause is based on subsections 33(2), (3) and (4) of the Proceeds of Crime Act 1987, and equates to clause 100 in relation to automatic forfeiture.
Clause 86 Buying out other interests in forfeited property
Clause 86 enables a person who has had an interest in forfeited property returned to him or her (either as a result of an order of the court under clause 84(1) or clause 85, or a direction under sub-paragraph 69(2)(c)) to purchase other interests in the property which remain forfeited if the previous owner of each of those interests does not object upon being given 21 days notice. This clause equates to clause 101 in relation to automatic forfeiture.
PART 2-3 – FORFEITURE ON CONVICTION OF A SERIOUS
OFFENCE
Clause 87 Simplified outline of this Part
This clause
gives a basic outline of the ‘automatic forfeiture’ provisions,
which apply on a conviction of a serious offence, contained in this Part of the
Bill.
DIVISION 1 – FORFEITURE ON CONVICTION OF A SERIOUS
OFFENCE
This Division provides for automatic forfeiture of restrained
property, on the conviction of a person of a serious offence, without the
necessity of a court order.
Clause 88 Forfeiting restrained
property without a forfeiture order if a person has been convicted of serious
offence
Clause 88 provides for the forfeiture of restrained property without a forfeiture order in certain circumstances (‘automatic forfeiture’).
Automatic forfeiture can only occur where the suspect has been convicted of a serious offence. In addition, to be liable to forfeiture the property must be either the subject of a restraining order, or the subject of a restraining order which was fully or partially revoked upon the provision of security or an undertaking pursuant to clause 42. The restraining order does not need to have been in place at the time of conviction, and provided the restraining order was made in relation to the person convicted of the offence, the property may be the property of that person or a third person.
Automatic forfeiture occurs at the end of the period of six months from the date of conviction. However, that time limit may be extended under clause 89.
The automatic forfeiture provisions do not apply to a person who has been convicted of the offence by virtue of having absconded as mentioned in paragraph 326(1)(d).
Under subclause 88(5) the restraining order does not have to have been made in relation to the specific offence of which the person was convicted. It is sufficient if it was made in relation to a related offence of which the person had been, or was proposed to be, charged at the time of the making of the order. This clause ensures that where a restraining order is made in the early stages of proceedings against a person in order to prevent dissipation of assets a new order does not have to be made if the offence with which the person is ultimately charged, or the charges which are ultimately proceeded with against the person, differ from those on which the restraining order was based, provided they relate to the same criminal activities or conduct.
Clause 89 Making an extension order extending the period before property is forfeited
Clause 89 enables a person to apply for an order extending the six month period after which automatic forfeiture will occur. The person must make an application within six months from the day of the conviction, must have applied to have the property excluded from the restraining order under clause 31, and must satisfy the court that he or she made the clause 31 application diligently and without undue delay. This requirement ensures that the provision is relied upon only where there is a genuine case for the exclusion of the property, rather than as a delaying tactic.
The court may grant an extension of nine months, giving a total of 15 months from the date of conviction. The extension period ends upon the final determination of the clause 31 application.
Subclause 90(1) enables the person who has been convicted of a serious offence, and whose property has been restraining in relation to that offence, to apply for an order excluding particular property from automatic forfeiture under clause 88. Such an application can be made at any time during the duration of the restraining order. The court can make the order if satisfied that the property is not the proceeds of unlawful activity, or an instrument of unlawful activity. The restraining order will remain in force in respect of the property to preserve it against the contingency that a pecuniary penalty order is made in respect of the property. This clause is based on subsection 48(4) of the Proceeds of Crime Act 1987.
Subclauses 90(2), (3) and (4) require the applicant to give the DPP notice, empower the DPP to appear and adduce evidence at the hearing of the application, and require the DPP to give the applicant notice of the grounds on which it proposes to contest the application.
Clause 91 When is property forfeited – general rule
Clause 91 provides that property which is automatically forfeited under clause 88 vests absolutely in the Commonwealth at the time of forfeiture. There is an exception in relation to registrable property under clause 92. Clause 91 is based on subsection 30(2) of the Proceeds of Crime Act 1987.
This clause provides an exception to the rule in clause 91 for
registrable property. If property specified in the forfeiture order is
registrable property, the property vests in equity in the Commonwealth but does
not vest in the Commonwealth at law until the registration requirements have
been completed. Paragraph 92(1)(b) gives the DPP power to do, on behalf of the
Commonwealth, anything necessary or convenient to give notice of or protect the
Commonwealth’s equitable interest in the property. Paragraph 92(1)(c)
provides that the Commonwealth is entitled to be registered as owner of the
property. Paragraph 92(1)(d) provides that the Official Trustee has power on
behalf of the Commonwealth to do anything necessary or convenient to obtain the
registration of the Commonwealth as the owner. The Official Trustee’s
powers under this paragraph include executing any instrument required to be
executed by a person transferring an interest in property of that kind :
subclause 92(3).
Subclause 92(2) ensures that any action by the DPP to
protect the Commonwealth’s interest in the property is not taken to be a
dealing with the property for the purposes of subclause 94(1). Subclause 92(1)
prescribes when the Commonwealth can begin to deal with forfeited property.
This clause is based on subsections 30(3) and (3A) of the Proceeds of Crime Act 1987.
Clause 93 Second exception – if a joint owner dies
This clause provides a second exception to the rule in clause 91 (when property vests in the Commonwealth). The exception applies where a person who is convicted of a serious offence is a joint owner of property which is liable to automatic forfeiture under clause 88, and that person dies before forfeiture occurs (ie the person dies before the end of the period set out in 88(3), at which time the property is automatically forfeited).
If at the end of the relevant period the property would have been forfeited under clause 88, clause 93 deems it to have vested in the Commonwealth immediately before the death of the person.
Clause 94 When can the Commonwealth begin dealing with forfeited property?
Clause 94 prevents the Commonwealth disposing of, or otherwise dealing with
property forfeited under clause 88, until either the appeal period in relation
to the conviction has expired without the lodging of an appeal, or an appeal
which was lodged within that period has been finally determined without the
conviction having been quashed. This clause is based on sections 30(4), (8) and
(9) of the Proceeds of Crime Act 1987.
Clause 95 enables the Official Trustee to realise property on behalf of
the Commonwealth. Subclause 95(1) provides that the Official Trustee (on
the Commonwealth’s behalf) must, as soon as practicable, dispose of any
forfeited property that is not money and apply any amount received from that
disposal, and any forfeited money to payment of its remuneration, costs charges
and expenses in connection with the disposal and with any restraining order that
covered the property and pay the balance to the Reserve in accordance with
clause 293. The clause is based on subsections 30(4) of the Proceeds of
Crime Act 1987.
Subclause 95(2) provides that, where the Official
Trustee is required to deal with property but has not yet begun, the Minister or
a senior Departmental officer authorised for the purposes of the
subclause may direct that the property be alternatively disposed of or otherwise
dealt with. Such a direction may be that property be disposed of in accordance
with provisions of a specified law. That means that under subclause 95(2) the
Minister retains a power to direct that forfeited property be disposed of in
some particular way, for example that it be made available for use by a law
enforcement agency for operational purposes but ultimately sold and the proceeds
paid into the Confiscated Assets Account. That subclause adopts a similar
provision to subsections 30(4A) and (5) of the Proceeds of Crime Act
1987.
Clause 96 enables the Minister to give directions in relation to the
realisation and registration of forfeited property. This clause is based on
subsections 30(6) and (7) of the Proceeds of Crime Act 1987.
Clause 97 Court may make orders relating to transfer of forfeited
property etc.
Clause 97 enables a court to make an order declaring
the nature, extent and value of the interest of an applicant under clause 88 (a
person who has made an application to have property excluded from forfeiture
after forfeiture has occurred), and to direct the Commonwealth to transfer the
interest back to the applicant if it is still vested in the Commonwealth, or to
pay the applicant an amount equal to the value of that interest if it is no
longer vested in the Commonwealth.
Such an order may be made where the
court is satisfied either that the applicant was not involved in the commission
of the offence and (if the property was acquired during or after the commission
of the offence) that the interest in property was obtained for sufficient
consideration and without knowledge or grounds for reasonable suspicion that the
property was the proceeds of or an instrument of the offence. An order may also
be made under clause 97 if the property was not used in or derived from unlawful
activity and the applicant’s interest was lawfully acquired.
This clause is based on subsection 31(6) of the Proceeds of Crime Act
1987.
Clause 98 enables a court to make an order declaring the nature, extent
and value of the interest of an applicant under clause 88 (a person who has made
an application to have property excluded from forfeiture after forfeiture has
occurred), and permitting that person to buy back property which has been
forfeited under clause 88 on payment to the Commonwealth of an amount equal to
the value of that property. Such an order may be made where the court is
satisfied that it would not be contrary to the public interest, and there is no
other reason why the interest should not be so transferred. This clause is
based on subsection 31(7) of the Proceeds of Crime Act 1987.
Clause 99 provides that a person whose property has been forfeited under
clause 88 must apply to the court within six months of the forfeiture (or such
longer period as the court allows) for an order under clauses 97 or 98. Such an
application may be made by either the person convicted of the offence or a third
party whose property is forfeited. The court may grant leave to apply after the
end of the period if the court is satisfied that the delay in making the
application is not due to neglect on the part of the applicant.
A person
who was given notice of either the application for, or the making of, the
relevant restraining order can only appear with the leave of the court. Again,
the court may only grant that leave if it is satisfied that the person’s
failure to seek to have the property excluded from the order was not due to his
or her neglect.
The time restrictions in this clause ensure that, where
possible, the restraining order is challenged and interests in property are
determined, before forfeiture. This clause is based on subsections 31(1), (2),
(3), (4) and (5) of the Proceeds of Crime Act 1987.
Clause 100 facilitates the return to a successful applicant for an order
under 84 of property which the court has ordered be transferred to that person,
which remains vested in the Commonwealth, upon payment of the value of that
interest. This clause is based on subsections 33(2), (3) and (4) of the
Proceeds of Crime Act 1987, and equates to clause 85 in relation to
forfeiture orders under Part 2-2.
Clause 101 enables a person who has had an interest in forfeited property
returned to him or her (either as a result of an order of the court under clause
97 or under an order under clause 90) to purchase other interests in the
property which remain forfeited if the previous owner of each of those interests
does not object upon being given 21 days notice. This clause equates to clause
86 in relation to forfeiture orders under Part 2-2.
Clause 102 The effect on forfeiture of convictions being
quashed
Clause 102 provides that an automatic forfeiture of property
under clause 88 ceases to have effect 14 days after the quashing of the
conviction to which the restraining order relates unless the forfeiture relates
to other convictions which have not been quashed, and unless the DPP applies for
an order confirming the forfeiture within that time. If the DPP makes such an
application, the forfeiture is not affected by the quashing of the conviction
until that application is determined.
Clause 103 Notice of
application for confirmation of forfeiture
If the DPP applies for
confirmation of the forfeiture, written notice must be supplied to the person
whose conviction was quashed, any person who claims, or has claimed, an interest
in the forfeited property and any person who the DPP believes may have had an
interest in the forfeited property prior to the forfeiture.
In addition,
the court may direct the DPP to provide notice of the application to a specified
person or class of persons. The court may make this direction at any time
before the application is determined; the court may also specify the time and
manner of publication of the notice.
Clause 104 enables any person claiming an interest in the forfeited
property to appear and adduce evidence at the hearing of the application for
confirmation of the forfeiture, and empowers the court determining the
application to have regard to the transcript of proceedings against the person
for the offence, and any evidence given in those proceedings, of which the
person was convicted.
Clause 105 empowers a court, on the application of the DPP, to confirm
the forfeiture relating to a conviction which has been quashed if it is
satisfied that it could make a civil forfeiture order in relation to either the
person or the property under either clause 45 or clause 47 if the DPP were to
apply for an order under either of those clauses.
Clause 106 sets out the effect of the court’s decision to confirm or not confirm a forfeiture.
If the court confirms that forfeiture on the basis that it could have made a civil-forfeiture order based on conduct constituting a serious offence in relation to the offence for which the person’s conviction has now been quashed, subclause 106(1) provides that the entire forfeiture is not affected by the quashing.
However, if the court confirms the forfeiture on the ground that it could have made a civil forfeiture order based on conduct constituting an indictable offence in relation to the particular offence, the forfeiture remains in force only to the extent that it covers the proceeds of that offence. If the forfeiture covers other property, it is discharged in relation to that property.
Subclause 106(3) provides that where the court declines to confirm the forfeiture, the forfeiture is discharged.
Clause 107 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture
Clause 107 prevents the Official Trustee from dealing with property forfeited under clause 106 between the date of quashing of the conviction to which the forfeiture relates and the determination of an application for confirmation of the forfeiture.
Clause 108 Giving notice if forfeiture ceases to have effect on quashing of a conviction
Clause 108 requires the DPP to give written notice of a forfeiture ceasing to
have effect on the quashing of a conviction (either because the DPP has not made
an application for confirmation of forfeiture within 14 days of the quashing of
the conviction, or because a court has declined to confirm the forfeiture), to
any person the DPP reasonably believes may have had an interest in that property
immediately before the forfeiture, or to publish notice in a specified time and
manner, if required to do so by a court. The notice must advise the person of
their right to apply under clause 109 for the transfer of the interest or its
value.
Where automatic forfeiture ceases to have effect under clause 102 or 106,
clause 109 requires the Minister to arrange for the return of interests in
property forfeited under clause 88. If the interest is no longer vested in the
Commonwealth (and thus cannot be returned) the Minister is required to arrange
for the payment to the person of an amount equal to the value of the
person’s interest.
PART 2-4 - PECUNIARY PENALTY
ORDERS
Clause 110 Simplified outline of this
Part
This clause gives a basic outline of the pecuniary penalty order
provisions, which can apply whether or not a person has been convicted of an
offence, contained in this Part of the Bill.
DIVISION 1 – MAKING
PECUNIARY PENALTY ORDER
Clause 111 Making pecuniary penalty
orders
Subclause 111(1) empowers a court to make a pecuniary penalty
order (PPO) in certain circumstances. A PPO is an order that requires a person
to pay an amount of money to the Commonwealth, where the court is satisfied that
the person has derived a benefit from the commission of an indictable offence.
Under paragraph 111(1)(a), only the DPP can apply to the court for a
PPO.
To make a PPO, the court must be satisfied either that the person
has been convicted of an indictable offence and has derived benefits from the
commission of that offence, or that the person has committed a serious offence
within the six years preceding the application or the application for a
restraining order: paragraph 111(1)(b).
In assessing whether the person
has derived a benefit, subclause 111(2) enables the court to take into account
property that the court considers is under the effective control of the person
against whom the PPO is sought. A PPO may be sought and made even if another
confiscation order has been made in relation to the offence.
Clause
112 Pecuniary penalty orders made in relation to serious offence
convictions
This clause establishes when a PPO may be made against a
person in relation to the person’s conviction for a serious
offence.
Subclause 112(1) prohibits a court from making a PPO within six
months of the person’s conviction. This time enables appellate procedures
to take place, and is the same period that must lapse before automatic
forfeiture can occur under clause 88.
Subclause 112(2) provides that the
rule in subclause 112(1) does not apply where the conviction of the person for
the serious offence is a deemed conviction pursuant to paragraph 326(1)(d). That
paragraph deems a person who has absconded prior to the hearing of the offence
with which they were charged to have been convicted of that offence. The
procedure for making a PPO against such a person is set out in clause
113.
Clause 113 Making of pecuniary penalty order if person has
absconded
Clause 113 imports two additional elements of which the
court must be satisfied before a PPO can be made against a person deemed to have
been convicted of an indictable offence by virtue of the operation of paragraph
326(1)(d).
First, the court must be satisfied, to the civil standard,
that the person did abscond (as defined) in connection with the indictable
offence: paragraph 113(a).
Secondly, either of the elements set out in
paragraph 113(b) must occur: the person must have been committed for trial for
the offence, or the court hearing the application for the PPO must be satisfied
that on the available evidence a reasonable jury could lawfully find the person
guilty of the offence.
This ensures that a PPO is made only after a
court has assessed the evidence of the offence, thus preventing a PPO being made
in circumstances where there was insufficient evidence to require the person to
stand trial for the offence.
Clause 114 Ancillary
orders
This clause enables a court to make an order ancillary to a
PPO, at either the time the order is made or at a later time.
DIVISION
2 – PENALTY AMOUNTS
This division sets out the relevant things
that a court will take into account in determining the amount that a person will
be ordered to pay to the Commonwealth pursuant to a PPO.
Subdivision A – General
Clause 115 Determining penalty amounts
Clause 115 sets out
the basic equations which the court must apply to reach the final penalty
amount. A different formulation is used depending on whether the offence is a
serious or non-serious offence.
If the offence to which the order relates
is a non-serious indictable offence, the court must assess the value of the
benefits the person derived from the commission of the indictable offence in
accordance with the matters set out in Subdivision B. The court must then
assess the value of any deductions available to the person pursuant to
Subdivision C, and reduce the value of the benefits gained by the person by that
amount.
If the relevant offence is a serious offence, the same basic
equation is followed. However, the benefits taken into account pursuant to
Subdivision B are not limited to those derived from the particular offence, but
extend to any benefits the person has derived from any unlawful activity within
the period commencing six years before either the application for the PPO or the
application for a restraining order if one is in place, and the date of
determining the penalty amount. ‘Unlawful activity’ is defined in
Part 6-2 to include state and territory indictable offences, as well as offences
against the laws of a foreign country.
Subdivision B – the
value of benefits derived from the commission of the offence
When assessing any benefit that a person may have derived from the
commission of an indictable offence, subclause 116(1) directs the court to have
regard to any evidence before the court of a number of things. Those are set
out in paragraphs 116(1)(a)-(e).
Pursuant to paragraph 116(1)(a), the
court must have regard to the money that came into the control of the person
from the commission of the offence. Where the person gains property, not money,
from the commission of the offence, the court must look at the value of the
property. As a PPO is a monetary penalty, and does not directly provide for the
forfeiture of property, the court is interested only in the value of the
property, not the actual property per se. This paragraph also enables
the court to have regard to the value of any money or property derived from the
offence that come into the possession of a third party at the request of the
offender.
Pursuant to paragraph 116(1)(b), the court must also have
regard to the value of any other benefit that was provided to the person or
third party due to the commission of the offence. This enables the court to
look at the value of any services or other non-monetary benefits or payment in
kind that the person or third party may have received.
Where the indictable offence related to an act or thing done by the person in
relation to a narcotic substance, paragraph 116(1)(c) enables the court to have
regard to both the market value of the narcotic substance, and the value of the
act or thing which the person did. The court assesses the value of the narcotic
and act or thing as at the time of the offence, and is able to base the
valuation on a similar or substantially similar narcotic, or act or thing. In
addition, the court may have regard to a range of amounts ordinarily paid for
the act or thing. The court is given some leeway in those assessments in
recognition of the difficulty of establishing the value of something for which
there is no legitimate market or easily discernible benchmark.
Pursuant
to paragraph 116(1)(d), the court must also have regard to the value of the
person’s property before, during and after the relevant offence. The
court may also have regard to the person’s income and expenditure before
during and after the relevant offence: paragraph 116(1)(e).
Subclause
116(2) allows a police officer or customs officer to testify at the hearing of
the application about the market value of the narcotic substance, and the value
of the act or thing which the person did. The officer must be experienced in
the investigation of narcotics offences, and may testify to the best of his or
her information, knowledge and belief. This provision recognises that there
will often be little or no evidence to which a court can refer in establishing
the value of a narcotic at a particular time, or the value of a person’s
role or involvement in the drug trade
Subclause 116(3) provides that an
officer’s testimony given pursuant to subclause 116(2) is admissible at
the hearing, regardless of the laws or practice relating to hearsay evidence.
In addition, the evidence given by the officer constitutes prima facie evidence
of the matters testified to. If such evidence is given, the person is able to
lead evidence rebutting the testimony of the officer.
Subclause 117(1) sets out how the court is to use evidence that the value
of a person’s property during or after the offence exceeded the value of
the property before the offence, when the offence or none of the offences on
which the application for the PPO is made is not a serious offence.
Where
this occurs, the court must assess the value of the benefits that the person
derived from the commission of the offence (or offences) as being not less that
the amount of the greatest excess.
Subclause 117(2) provides that if
the person can satisfy the court that part of the excess was caused by something
unrelated to the offence, the value of that benefit is accordingly reduced.
This clause applies where an application for a PPO is based on a serious
offence, or if there are a number of offences, at least one of the offences is a
serious offence. In those circumstances, the clause provides a presumption that
where the value of a person’s property during or after the offence or any
other unlawful activity engaged in within the relevant period (the period
commencing six years before either the application for the PPO or the
application for a restraining order if one is in place, and the date of
determining the penalty amount) exceeded the value of the property before the
offence or unlawful activity, the court must assess the value of the benefits
that the person derived from the commission of the offence or unlawful activity
as being not less than the amount of the greatest excess.
Subclause
118(2) provides that if the person can satisfy the court that part of the excess
was caused by something unrelated to the offence or unlawful activity, the value
of that benefit is accordingly reduced.
In addition, where there is
evidence provided to the court regarding the person’s expenditure during
the relevant period, that amount is presumed to be the value of a benefit
provided to that person due to his or her illegal activity.
Subclause 119(1) provides that when the court is assessing the value of a
benefit, the court may assess the benefit at the value it has at the time of the
court making its assessment.
The court may also have regard to any
decline in the purchasing power of money between the time that the benefit was
actually derived, and the time of the assessment being made: subclause
119(2).
Paragraph 120(a) provides that in assessing the benefits accrued by the
person, the court must not reduce the value of the benefits by the expenses or
outgoings that the person incurred in committing the offence or offences from
which the benefits were derived
If the person derived benefits on behalf
of or as agent for another person, those benefits must also not be discounted by
the court.
Clause 121 ensures that a single benefit accrued by a person is not the
subject of two PPOs. Subclause 121(1) provides that if a pecuniary penalty has
been imposed in relation to the particular benefit either under the Act, the
Customs Act 1901, or a State or Territory law, the benefit cannot be
taken into account for the purposes of Subdivision B.
For the purposes of
this clause, the amount payable pursuant to a literary proceeds order under this
Act is a pecuniary penalty.
Clause 122 provides that the court may treat property which it finds to
be under the effective control of the person as the property of that person, for
the purpose of assessing benefits derived from an offence.
Clause 123 enables the court to treat as property of the person property
which was the property of the person, and has vested in certain trustees
pursuant to the Bankruptcy Act 1966. The property is treated as the
property of the person only for the purpose of assessing any benefits which the
person has derived in relation to that property. This provision does not effect
the legal status of the property.
Subdivision C – Reducing
penalty amounts
Clause 124 Reducing penalty amounts to take
account of forfeiture and proposed forfeiture
Where property has been assessed by the court as the benefit of an offence,
and at the time of the making of the PPO, that particular property has already
been forfeited as the proceeds of that same offence, clause 124 provides that
the penalty amount imposed by the PPO must be reduced by the value of that
particular property.
Forfeited property that may be taken into account
is property forfeited under the Act, another law of the Commonwealth or a law of
a Territory. This clause applies equally where there is no forfeiture order yet
made, but it is proposed that a forfeiture order be made against the property.
For example, there may be a current application for an order before the court.
Clause 125 provides that where a person has paid tax which is
attributable to the benefits assessed by the court, the court may reduce the
amount to be paid under the PPO by an equivalent amount.
The tax which
may be taken into account by the court may be levied by the Commonwealth, a
State or Territory, or a foreign country.
Clause 126 enables a court, where the court considers it appropriate, to
reduce the amount payable under the PPO by an amount equal to any fine,
restitution, compensation or damages which the person may pay in relation to the
offence.
Subdivision D – Varying pecuniary penalty orders to
increase penalty amounts
Subclause 127(1) provides for the court to vary a PPO by increasing the
penalty amount to be paid. The court may vary the amount only on application by
the DPP, and may only do so in two specified circumstances. The court may
entertain an application by the DPP on both grounds at the same
time.
Subclause 127(2) allows the amount payable under the PPO to be
increased where that amount was initially reduced by the value of particular
property due to the operation of clause 124, and there is a subsequent
successful appeal against the forfeiture order, or the application for
forfeiture fails. (Clause 124 enables the court to reduce the penalty amount if
certain property has already been forfeited or is proposed to be forfeited.)
The amount by which the court can increase the order is equal to the value of
the property.
Subclause 127(3) allows the PPO amount to be increased
where that amount was reduced under clause 125 in relation to tax paid by the
person, and that tax is then repaid or refunded to the person. The court may
increase the order by the amount of tax repaid or refunded.
Providing the
court with this ability to vary the order does not enable the court to increase
the overall penalty amount. Prior to the application of clause 124 or 127, the
property in question had been assessed by the court as a benefit derived by the
person from an offence; the refund of tax or the failure of a forfeiture order
in relation to the same property should not affect that finding by the court.
This clause authorises the DPP to apply for a PPO, and sets out the
requirements of such an application.
As with the other confiscatory
actions, only the DPP may apply for a PPO. An application may be made in
relation to one of more offences committed by the person; an application may
also be made in relation to an offence for which a forfeiture order has been
made or applied for, or to which automatic forfeiture applies.
Where the
application is based on the person’s conviction for an indictable offence,
the DPP must observe the time limitations set out in subclauses 128(2) and (3).
Those limitations require the DPP to bring any application for a PPO within six
months of the conviction day or, if the offence is a serious offence, within
nine months of the date of conviction.
Subclause 129(1) prohibits the DPP from applying, without the leave of
the court, for a PPO in relation to the benefits of an offence if an application
for a pecuniary penalty has already been made and finally determined in respect
of the same benefits. This prohibition applies whether the previous application
was made under this Division, another law of the Commonwealth or a law of a
Territory.
Subclause 129(2) provides that if the DPP seeks the leave of
the court, the court may not grant that leave unless one of the criteria in
paragraph 129(2)(a)-(c) is met. Those criteria are that either the benefit in
respect of which the DPP wishes to apply for a second PPO was only identified
after the determination of the first application; essential evidence only came
to light after the determination of the first application for a PPO; or a second
application for a PPO is in the interests of justice.
Subclause 129(3)
provides that for the purposes of this clause an application for a literary
proceeds order is not an application for a pecuniary penalty.
This clause requires the DPP to provide written notice of the application
for a PPO to the person against whom the order is being sought. In addition,
the DPP must provide a copy of the application for the PPO and any affidavit
along with the notice.
Clause 131 establishes how an application for a PPO may be
amended.
Subclause 131(1) provides that the court may amend the
application only on application of the DPP, or with the consent of the
DPP.
If the application for amendment is to include an additional benefit
in the PPO application, subclause 131(3) requires the DPP to provide written
notice of the application (for amendment) to the person against whom the PPO is
being sought.
Subclause 131(2) provides that the court may amend an
application for a PPO to include an additional benefit only where either that
additional benefit was not reasonably capable of identification at the time of
making the original application, or necessary evidence only became available
after the making of the initial application. An example of additional necessary
evidence would be proof that the benefit was derived from the offence on which
the application for a PPO was based.
Clause 132 Procedure on
application
Subclause 132(1) provides for evidence to be given by the
person against whom the PPO is sought at the hearing for the
PPO.
Sub-paragraph 132(2)(a)(i) provides that where the PPO is sought on
the basis of the person’s conviction of an indictable offence, the court
may have regard to the transcripts of proceedings in relation to that offence.
The evidence given in that proceeding may also be taken into account: paragraph
132(2)(b).
Sub-paragraph 132(2)(a)(ii) provides that where the person is
taken to have been convicted of the offence because of the operation of
paragraph 326(1)(c) of the Act, the court may have regard to the transcript of
the proceedings for the ‘other offence’ referred to in paragraph
326(1)(c). Paragraph 326(1)(c) deems a person to have been convicted of an
offence where that offence has been taken into account (with the consent of the
person) at sentencing for another offence; no formal finding of guilt is made in
relation to the offence taken into account. The ‘other offence’ to
which sub-paragraph 132(2)(a)(ii) refers is the offence for which the person was
convicted. The evidence given in that proceeding may also be taken into
account: paragraph 132(2)(b).
Clause 133 enables a court to hear and determine an application for a PPO
made in relation to a person who was convicted of an indictable offence before
that same court. The clause provides that in those circumstances the court may
exercise its powers in relation to the PPO regardless of whether or not the
court is constituted in the same manner it was when the person was convicted of
the indictable offence.
Where a PPO is made against a person for the payment to the Commonwealth
of a specified amount of money, subclause 134(1) provides that that amount is a
debt due by that person to the Commonwealth.
Subclause 134(2) provides
that the PPO may be enforced by the Commonwealth as if it were an order made by
a court to recover a debt due by that person to the Commonwealth. By operation
of subclause 134(3), that debt is taken to be a judgment debt.
Where the court has made a PPO in relation to a person, the DPP may apply
to the court for an order under clause 135, declaring that all or part of
property within the effective control of that person be made available to
satisfy the PPO. The court may make such an order where it is satisfied that
the property is subject to the effective control of the person.
Subclause 135(2) provides that where the court makes such an order, the
order may be enforced as if the property under the effective control of the
person were the property of that person.
In addition, the court may
make a restraining order over that property: subclause 135(3). The restraining
order may be made as if the property were the property of the person, and the
person had committed a serious offence. This enables the court to restrain all
of the property, whether or not that property is the proceeds or instrument of
the offence.
Subclause 135(4) requires the DPP to provide notice of an
application under this clause to the person in respect of whom the PPO was made,
and any other person who the DPP believes has an entitlement to the property.
Those people may appear at the hearing of the application, and adduce evidence
(subclause 135(5)).
By force of clause 136, where both a PPO and a restraining order are made
against a person, upon the making of the later of the orders a charge is created
over restrained property to secure the payment to the Commonwealth of the PPO.
The restraining order must have been made in relation to the offence on which
the PPO was based, or a related offence.
The charge is created over the
property of the person who is to pay the PPO and any property over which the
court has found the person has effective control (pursuant to clause 135).
There are a number of circumstances, set out in subclause 136(2), in
which the charge may cease to have effect. Some of those circumstances relate
directly to the PPO; others are in relation to the property the subject of the
charge. If the PPO was made in relation to a person’s conviction, and
that conviction is quashed, the charge ceases to have effect upon the PPO being
discharged pursuant to Division 5.
It also ceases where a person
successfully appeals against either the PPO or restraining order, and the
relevant order is discharged by the court. If the person pays out the PPO in
full, or alternatively, becomes a bankrupt, the charge ceases to have
effect.
Certain sales or disposal of property also causes the cessation
of the charge. The property may be disposed of by order of the court, by the
owner of the property with the consent of the court or (where appropriate) the
OT. Sale of the property to a purchaser for sufficient consideration, where the
person has no notice of the charge and purchases in good faith will also cause
the charge to cease.
Subclause 136(3) provides that a charge made under
this clause is subject to all earlier encumbrances that would otherwise have
priority. For example, if the restrained property is a house, there may be an
earlier mortgage which upon disposal of the property would be paid out prior to
payment of the PPO.
By operation of paragraph 136(3)(b), the charge has
priority over all other encumbrances.
Paragraph 136(3)(c) enables a
charge to continue to have effect, despite any change in ownership of the
property. However, this is subject to the matters set out in subclause 136(2).
For example, if the property was sold to a third person who paid sufficient
consideration, had no knowledge that the property was subject to the charge, and
otherwise acted in good faith, the charge would be affected by the change in
ownership by virtue of paragraph 136(2)(f). However, if the person did know of
the charge, then the conditions of paragraph 136(2)(f) would not be met, and
subclause 136(3) would apply. The property would remain subject to the charge,
and may be disposed of to satisfy the PPO.
Clause 137 provides that where the Commonwealth, a State or Territory has
a system of registration for certain types of property the DPP may apply for a
charge created by clause 136 to be registered with the relevant authority. Once
registration is effected, any person who purchases or otherwise acquires an
interest in the property is taken to have notice of the charge.
The most
likely property to be registered will be real property; however, motor
vehicles, boats and many other types of property also have relevant registration
systems.
The clause provides for the recovery of the amount specified in a PPO in
circumstances where the court that made the relevant order does not have the
jurisdiction to recover that amount.
Pursuant to subclause 138(1),
where a court makes an order that it does not have the jurisdiction to enforce,
the registrar of that court must issue a certificate in accordance with the
regulations.
Subclause 138(2) specifies that the certificate may then be
registered in a court which has jurisdiction in relation to the recovery of the
amount of the PPO. The certificate must be registered in accordance with the
regulations.
Once the certificate is registered, it is enforceable as a
final judgment of that court: subclause 138(3)
DIVISION 5 – THE
EFFECT ON PECUNIARY PENALTY ORDERS OF CONVICTIONS BEING
QUASHED
Clause 139 Pecuniary penalty order unaffected if not made
in relation to a conviction
Clause 139 provides that where a PPO is
not made on the basis that a person was convicted of an offence, the conviction
of that person for the offence, and subsequent quashing of that conviction does
not effect the operation of the PPO.
This clause operates even if the
conviction which is quashed is in respect of the same offence or conduct upon
which the PPO is based.
Clause 140 Discharge of pecuniary
penalty order if made in relation to a conviction
This clause
provides for the discharge in certain circumstances of a PPO made in relation to
a person’s conviction for an indictable offence. Subclause 140(1) sets
out what happens when the conviction was for a serious offence; subclause
140(2) sets out what happens when the conviction was for an indictable offence
that is not a serious offence.
Under subclause 140(1) a PPO made in
relation to a person’s conviction of a serious offence may be discharged
where the person’s conviction was quashed after the making of the PPO, and
the DPP does not apply to the court for the order to be confirmed. The DPP may
make such an application to the court within fourteen days of the conviction
being quashed.
If the DPP does make an application for confirmation of
the PPO, the PPO remains unaffected by the quashing of the conviction unless and
until the court determines the application. Unless the court determines
otherwise, the PPO remains unaffected for the fourteen days following the
quashing.
Under subclause 140(3) a PPO made in relation to a
person’s conviction of an offence that is not a serious offence may be
discharged where the person’s conviction was quashed after the making of
the PPO.
The DPP cannot apply to have the PPO confirmed where the offence
was not a serious offence. It is only where the offence is a serious offence
that the court may have made the PPO based on ‘reasonable grounds to
suspect’, which is the basis on which the court may confirm the order
under clause 143. (See clause 111 for the grounds on which a PPO may be
sought.)
This clause requires the DPP to supply the person whose conviction has
been quashed with notice in writing of the application for confirmation of the
PPO.
Clause 142 Procedure on application for confirmation of
pecuniary penalty order
This clause sets out who may appear at the
hearing of the application for confirmation of the PPO, and to what evidence the
court may have regard.
The person whose conviction has been quashed may
appear at the hearing of the DPP’s application for confirmation of the
PPO, and may adduce evidence at that hearing: subclause 142(1).
Subclause 142(2) provide that the court may consider the transcript of the
proceedings for the offence which has been quashed, as well as the appellate
proceedings relating to that offence. If the person was taken to have been
convicted of the offence because of the operation of paragraph 326(1)(c), the
court may also take into account the transcript of proceedings for the
‘other offence’ referred to in paragraph 326(1)(c). Paragraph
326(1)(c) deems a person to have been convicted of an offence where that offence
has been taken into account (with the consent of the person) at sentencing for
another offence; there is no formal finding of guilt in relation to the offence
taken into account. The ‘other offence’ is the offence for which
the person was formally convicted; it is the transcript of the proceedings for
that offence (along with the transcript of appellate proceedings) to which the
court may have regard.
Paragraph 142(2)(b) provides that the court may
also have regard to any evidence given in either of those proceedings.
Clause 143 enables the court to confirm the PPO where the court is
satisfied that at the time the DPP applied for the PPO, the court could have
made the order on the basis that there were reasonable grounds to suspect that
the person had, within the last six years, committed the offence (on which the
original PPO was based).
The court must be satisfied that it could have
made the order based only on the reasonable grounds test, and without any
reliance on the fact of the person’s conviction for that offence.
Clause 144 Effect of court’s decision on confirmation of forfeiture orders
Clause 144(1) establishes that where the court confirms the PPO on
application by the DPP, the order is not affected by the quashing of the
conviction.
Pursuant to clause 144(2), where the court does not grant
the application for confirmation of the PPO, the PPO is discharged.
Clause 145 Simplified outline of this Part
This clause
gives a basic outline of when a literary proceeds order can be made under Part
2-5.
This Division empowers a court to make a literary proceeds orders in
particular circumstances, defines literary proceeds and gives courts a
discretion as to whether or not to make such orders.
Subclause 146(1) empowers the court to make a literary proceeds order
against a person who has been convicted of an indictable offence or a foreign
indictable offence, or in relation to whom there are reasonable grounds to
suspect that he or she has committed an indictable offence or a foreign
indictable offence, who has derived literary proceeds in relation to the
offence. This clause ensures that literary proceeds orders will be available
only against persons who were parties to the offence. Other persons involved in
the publication, for example publishers or film-makers who, in good faith and
for valuable consideration, benefit from the publication of the product, will
not be liable to such orders. ‘Foreign indictable offence’ is
defined in Part 6-2 and ‘literary proceeds’ is defined in clause
147.
Subclause (2) empowers the court, on the application of the DPP,
to make an order requiring a person who has been convicted of, or who is
suspected on reasonable grounds to have committed, a foreign indictable offence,
to pay an amount to the Commonwealth if the court is satisfied that the person
has derived literary proceeds in relation to the offence in Australia.
A
court may make a LPO in relation to an offence even if there is another
confiscation order which relates to that offence in force.
By operation
of clause 14 of the Act, a literary proceeds order is available whether or not
the relevant offence occurred before or after the commencement of this
legislation. However, a LPO cannot be made in relation to literary proceeds
derived prior to the commencement of this Act : subclause 146(3)
The
effect of subclauses (1), (2), (3) and (4) is that a literary proceeds order is
to be available where a person, at any time after the commencement of the
legislation, derives a benefit from the publication of any material concerning
the circumstances of an indictable offence committed by that person whether or
not he or she was charged with or convicted of the offence, and whether or not
the offence occurred before or after commencement of the legislation. The
offence must either have been committed in Australia, or the proceeds must have
been derived in Australia, but both conditions are not required.
Clause 147 defines ‘literary proceeds’ to be any benefit that
a person derives from the commercial exploitation of his or her notoriety, or
the notoriety of his or her accomplice, resulting from the person’s
involvement in the commission of an indictable offence or a foreign indictable
offence.
Subclause (2) states that such exploitation may take the form
of a written or electronic publication, (which would include books, newspapers,
magazines, world wide web, or other written or pictorial matter), any media from
which visual images or words or sounds can be produced (which would include
radio, film, video or television productions, compact discs, tapes, world wide
web), or any live entertainment, representation or interview. That list is not
exhaustive. It is intended that a court may find that a person has commercially
exploited their involvement in an indictable offence by any other means where
the marketability of the product generating those benefits is related to the
person’s involvement in the commission of an indictable offence or a
foreign indictable offences committed by the person.
Subclause (3)
empowers a court to regard as literary proceeds any benefits derived from the
commercial exploitation of a person’s involvement in a Commonwealth
indictable offence, whether or not that commercial exploitation took place in
Australia. In relation to a foreign indictable offence, the commercial
exploitation must have taken place in Australia – that is, the benefits
must have been derived in Australia.
Subclause (4) empowers a court which
is determining whether a person has received literary proceeds or the value of
those proceeds to regard money or the value of property which is under the
effective control of that person, or which has been paid or transferred to
another person at the request or direction of that person, as property of that
person.
Clause 148 Matters taken into account in deciding whether to
make literary proceeds orders
To ensure that no injustice is
perpetrated by the enactment of these provisions, clause 148 provides courts
determining applications for literary proceeds orders with a wide discretion
whether or not to make such an order. Courts may take into account any matters
which they see fit, and may look at such questions as the nature and purpose of
the publication, whether the publication was in the public interest (for example
whether it had any rehabilitative or deterrent value), whether the publication
had any social, cultural or educational value, the seriousness of the offence,
and the time which has elapsed since the commission or alleged commission of the
offence.
Clause 326(1)(d) enables courts to deem absconders to have been convicted
of an indictable offence in certain circumstances. Clause 149 expressly allows
the making of literary proceeds orders against such persons, but only where the
court dealing with the application is satisfied that the person has absconded
and the person has either been committed for trial or the court is satisfied
that the person could be found guilty of the offence. This clause mirrors the
provision in relation to the making of confiscation orders against absconders
under section 17 of the Proceeds of Crime Act 1987, and is intended to
ensure that literary proceeds orders can be made by Australian courts in
relation to literary proceeds derived by such persons even where the person is
not amenable to the jurisdiction of the court.
Clause 150 makes it clear that more than one literary proceeds order can
be made under this Division in relation to the same offence. Thus, the DPP can
apply for a literary proceeds order on each and every occasion on which it is
considered that there has been a commercial exploitation of the person’s
involvement in an indictable offence.
Clause 151 Ancillary
orders
This clause enables a court to make an order ancillary to a
LPO, at either the time the order is made or at a later
time.
This Division sets out how the quantum of a literary proceeds order is to
be determined by a court dealing with an application for such an
order.
Clause 152 Determining literary proceeds
amounts
Clause 152 provides courts with a wide discretion as to the
quantum of a literary proceeds order, subject to a maximum amount and certain
deductions under clauses 153 and 154. This provision ensures that the literary
proceeds order may relate to any or all of the identified proceeds by giving the
court a discretion to treat as literary proceeds any profits derived from the
publication of any material concerning the circumstances of an indictable
offence committed by the person, or any material concerning the person’s
criminal activities.
Subclause (2) empowers the court assessing the
quantum of a proposed literary proceeds order to take into account the
total amount of literary proceeds derived in relation to the offence from
previous commercial exploitations of the person’s involvement in that
offence.
Subclause (3) specifically empowers courts determining the
quantum of literary proceeds orders to have regard to the evidence adduced in
any trial for the offence and the sentencing transcript, if any. This is
similar to the existing procedure in relation to the making of confiscation
orders under section 18 of the Proceeds of Crime Act 1987.
As the proposed order is directed at profits rather than at the total
benefit received from the commercial exploitation of a person’s
involvement in an indictable offence, subclause 153(a) requires a court
assessing the quantum of a proposed literary proceeds order to deduct from the
proceeds derived any expenses and outgoings incurred in the receipt of the
literary proceeds (for example, legal fees associated with deriving those
proceeds). It is not intended that legal fees associated with defending the
application for forfeiture of literary proceeds are to be deducted under this
provision.
Subclauses 153(b) and (c) further require a court assessing
the quantum of a proposed literary proceeds order to deduct from the proceeds
derived any confiscation of such profits which has already occurred under the
Proceeds of Crime Act 1987 or this Act, under section 243B of the
Customs Act 1901, or under an interstate or foreign forfeiture order or
pecuniary penalty order to the extent that such confiscation relates to literary
proceeds, and any tax paid in respect of such. These subclauses mirror the
existing provisions of section 27 of the Proceeds of Crime Act 1987 in
relation to the making of pecuniary penalty orders.
Subclause 153(d)
also requires the court assessing the quantum of a proposed literary proceeds
order to deduct the amount of any previous literary proceeds order made
against the person in relation to the same offence from the proceeds derived.
This subclause refers to the situation where a person has been the subject of
previous literary proceeds orders in relation to his or her involvement in that
offence. As all the literary proceeds made by the person are taken into account
under clause 152, this clause ensures that specific literary proceeds are not
effectively confiscated twice.
Clause 154 Reducing literary proceeds
amounts to take account of tax paid
Clause 154 enables a court
assessing the quantum of a proposed literary proceeds order to deduct
from the amount received the amount of any Commonwealth, State or foreign taxes
paid which, in the opinion of the court, are attributable to the benefits being
assessed. This subclause mirrors the existing provisions of subsection 27(4) of
the Proceeds of Crime Act 1987 in relation to the making of pecuniary
penalty orders.
Clause 155 Varying literary proceeds orders to
increase literary proceeds amounts
Subclause 155(1) provides for the
court to vary a LPO by increasing the penalty amount to be paid. The court may
vary the amount only on application by the DPP, and may only do so in three
specified circumstances. The court may entertain an application by the DPP on
both grounds at the same time.
Subclause 155(2) allows the amount payable
under the LPO to be increased where that amount was initially reduced by the
value of particular property due to the operation of paragraph 153(b), and there
is a subsequent successful appeal against the forfeiture order. (Paragraph
153(b) enables the court to reduce the literary proceeds amount if certain
property has already been forfeited or is proposed to be forfeited.) The amount
by which the court can increase the order is equal to the value of the property.
Subclause 155(3) allows the amount payable under the LPO to be increased
where that amount was initially reduced by a particular amount due to the
operation of paragraph 153(c), and there is a subsequent successful appeal
against payment of that amount. (Paragraph 153(c) enables the court to reduce
the literary proceeds amount if a person is to pay a certain amount pursuant to
a PPO or other pecuniary order.) The amount by which the court can increase the
order is equal to the value of the property.
Subclause 155(4) allows the
literary proceeds amount to be increased where that amount was reduced under
clause 154 in relation to tax paid by the person, and that tax is then repaid or
refunded to the person. The court may increase the order by the amount of tax
repaid or refunded.
Providing the court with this ability to vary the
order does not enable the court to increase the overall penalty amount. The
provisions of clause 155 merely enable the court to change the literary proceeds
amount back to that amount originally assessed where one of the factors relied
upon to reduce the literary proceeds amount does not occur.
Clause 156 DPP may apply for a literary proceeds
order
This clause enables the Director of Public Prosecutions to
apply to a court for a literary proceeds order at any time after the commission
of an offence. The application may relate to one or more
offences.
Clause 157 Notice of application
Clause 157
requires the DPP to give notice of the application to the person against whom
the prospective order is to be made, but allows for ex parte applications
with the approval of the court.
Clause 158 Amendment of
application
Clause 158 enables an application for a literary proceeds
order to be amended on the application of the DPP, or with the consent of the
DPP.
Subclause (2) precludes the court from amending the application to
include additional literary proceeds unless the court is satisfied that those
proceeds were not reasonably capable of identification at the time of making the
application, or that the evidence necessary to support the application has only
become available since that time. This limitation is to provide certainty to
the person against whom the application is made.
Subclause (3) requires
the DPP to give notice of the application to amend, where the effect of the
amendment would be to include additional literary proceeds in the application,
to the person against whom the order is sought.
Clause 159 Procedure
on application
This clause gives the person against whom a literary
proceeds order is sought a right to appear and adduce evidence at the hearing of
the application. This clause reflects subsection 15(2) of the Proceeds of
Crime Act 1987.
Clause 160 enables a court to hear and determine an application for a
literary proceeds order made in relation to a person who was convicted of an
indictable offence before that same court. The clause provides that in those
circumstances the court may exercise its powers in relation to the order
regardless of whether or not the court is constituted in the same manner as when
the person was convicted of the indictable offence.
Clause 161 Enforcement of literary proceeds orders
This
clause provides that a literary proceeds order gives rise to a civil debt due by
the person to the Commonwealth, that that order may be enforced as an order of
the court made in civil proceedings for the recovery of a debt due by the person
to the Commonwealth, and that the debt arising shall be taken to be a judgment
debt. This clause reflects subsections 26(8) and (9) of the Proceeds of Crime
Act 1987.
Clause 162 Property subject to a person’s
effective control
Subclause (1) enables a court to make an order, on
the application of the DPP, that property which is under the effective control
of a person against whom a literary proceeds order has been made is to be
available to satisfy that order.
Subclauses (2) and (3) enable the
literary proceeds order to be enforced against the property of a third person
which has been declared available under subclause (1), and enable a restraining
order to be made in relation to that property.
Subclauses (4) and (5)
require the DPP to give notice of an application for an order under subclause
(1) to both the person subject to the literary proceeds order and any person
whom the DPP has reason to believe may have an entitlement to the property, and
give any such persons a right to appear and adduce evidence at the hearing of
the application.
Clause 163 Charge on property subject to restraining
order
Subclause (1) creates a charge over property which is subject
to both a literary proceeds order and a restraining order to secure payment to
the Commonwealth of the literary proceeds amount. In the case of a restraining
order imposed in relation to a person’s conviction or proposed conviction
or an offence, the charge will only be created under this clause if that
restraining order relates to the offence or criminal activity to which the
literary proceeds order relates. This clause is based on subsection 50(1) of the
Proceeds of Crime Act 1987.
Subclause (2) sets out the
circumstances in which a charge created under subclause (1) ceases to have
effect. This clause is based on subsection 50(2) of the Proceeds of Crime
Act 1987.
Under subclause (3) a charge is deemed to be subject to
every encumbrance that has come into existence before the charge and that would
otherwise have priority, has priority over all other encumbrances, and subject
to subclause (2), is not affected by any change of ownership of the property.
This clause is based on subsection 50(3) of the Proceeds of Crime Act
1987.
Clause 164 Charges may be registered
Clause 164
enables the Official Trustee or the DPP to register charges created under clause
163 where the provisions of any Commonwealth, State or Territory law provide for
registration of such charges. A person who subsequently acquires an interest in
property which is subject to such a registered charge is deemed to have had
notice of the charge. This clause is based on subsection 50(4) of the
Proceeds of Crime Act 1987.
Clause 165 Literary proceeds
amounts exceeding the court’s jurisdiction
Subclauses
165(1)-(3) clarify jurisdictional issues that may arise ensuring that courts
have the ability to deal enforce orders made under this
Part.
DIVISION 5 – THE EFFECT ON LITERARY PROCEEDS ORDERS OF
CONVICTIONS BEING QUASHED
Clause 166 Literary proceeds order
unaffected if not made in relation to conviction
Clause 166 provides
that a literary proceeds order is not affected by the quashing of a
person’s conviction for an offence unless it was made in relation to that
conviction. An order made in relation to an offence will not be affected by the
subsequent quashing of any conviction for the offence.
Clause 167
Discharge of literary proceeds order if made in relation to
conviction
Clause 167 provides that where a conviction in relation to
which a literary proceeds order is made is subsequently quashed and the DPP has
not, within 14 days of the quashing of the conviction, applied to the court for
the order to be confirmed, the order is discharged. If the DPP makes such an
application, the order is not affected by the quashing of the conviction until
that application is determined.
Clause 168 requires the DPP to give notice of the application for
confirmation of the literary proceeds order to the person whose conviction was
quashed.
Clause 169 Procedure on application for confirmation of
literary proceeds order
Clause 169 enables the person against whom
the order was made to appear and adduce evidence at the hearing of the
application for confirmation of the order.
Subclause (2) empowers the
court determining the application to have regard to the transcript of
proceedings against the person for the offence of which the person was convicted
or any appeal against the conviction, together with any evidence given in those
proceedings.
Clause 170 empowers a court, on the application of the DPP, to confirm
the literary proceeds order relating to a conviction which has been quashed if
it is satisfied that it could have made a literary proceeds order in relation to
the person on the grounds other than in reliance on the person’s
conviction of the offence.
Clause 171 Effect of court’s
decision on confirmation of literary proceeds order
Clause 171
provides that if a court confirms the literary proceeds order relating to a
conviction which has been quashed, that order is not affected by the quashing of
the conviction. The order will therefore continue to apply despite the quashing
of the conviction.
If the court decides not to confirm the order, it is
discharged.
Clause 172 Literary proceeds orders can cover future literary
proceeds
This clause enables a court which is determining an
application for a literary proceeds order, on the application of the DPP, to
include amounts of literary proceeds which it is satisfied the person is to
receive in the future. The purpose of this provision is to remove the need for
the DPP to keep returning to court with new applications in relation to on-going
payments to which the person the subject of the order is entitled – for
example royalties or progress payments.
Clause 173 Enforcement of
literary proceeds orders in relation to future literary proceeds
This
clause provides that an order in relation to future literary proceeds can not be
enforced unless and until those proceeds are actually received.
PART 3-1 EXAMINATIONS
This clause provides that where a restraining order is in force, a court
may make an order for the examination of any person. That includes a person who
owns the property, or who claims an interest in property that is the subject of
the restraining order, and a person named in a restraining order as a suspect;
further, it includes the spouses of those persons. Those persons and their
spouses can be examined about the “affairs” (for example the
interests, transactions, and ventures) including the nature and location of any
property of any of the persons referred to in paragraphs 174(1)(a)-(c). The
person to be examined may also include lawyers, accountants, bankers and other
advisers of the any of the persons referred to in paragraphs 174(1)(a)-(c).
Upon the cessation of the restraining order, the examination order also
ceases to have effect.
Clause 175 Examination orders
relating to applications for confirmation of forfeiture
This clause
applies where an application has been made to quash a person’s conviction
(refer: clauses 77, 102, 140 and 167). The court may make an order for the
examination of a person, including the person whose conviction is quashed, and a
person whose property, or interest in the property is the subject of a
forfeiture, pecuniary penalty order or literary proceeds order. Those persons
and their spouses can be examined about the “affairs” (for example
the interests, transactions, and ventures) including the nature and location of
any property of any of the persons referred to in paragraphs 175(1)(a)-(c). The
person to be examined could also include lawyers, accountants, bankers and other
advisers of any of the persons referred to in paragraphs 175(1)(a)-(c). The
examination order ceases if the application to quash is withdrawn or when the
court makes a decision on the application.
This clause provides that the examination order can be made only on the
application of the DPP.
This clause enables the DPP to apply to an approved examiner for a
written examination notice. The approved examiner is a person who holds an
office or who is included in a class of people specified in the regulations or
who has been appointed by the Attorney-General under this clause.
It is
currently anticipated that those who may be appointed as approved examiners
would include Members of the Administrative Appeals Tribunal above a certain
rank, Members of the Administrative Appeals Tribunal with at least five years
admission as a legal practitioner, persons who have held judicial office and
have signified their willingness to be an approved examiner, former Magistrates
who have signified their willingness to be an approved examiner, and persons
with relevant qualifications including at least five years admission as a
practitioner who have signified their willingness to be an approved
examiner.
The approved examiner can give an examination notice to a
person who is the subject of an examination order. An approved examiner cannot
give an examination notice if an application has been made to revoke the
relevant restraining order and the court orders the examination not to proceed.
An approved examiner is not prevented from giving an examination notice
by the institution or commencement of any criminal proceedings.
This clause allows more than one examination notice to be given to a
person who is the subject of an examination order.
This clause sets out the form and content of examination notices. The
notice must be in the prescribed form, it must require the person to attend the
examination and specify the time and place of the examination. The notice must
also specify any further information as required by the regulations. The notice
may require the person to produce at the examination any documents specified in
the notice .
This clause requires the examination to be conducted at the time and
place specified in the examination notice. The approved examiner may move the
examination to another time and place at the request of the parties to the
examination referred to in subclause 182(3). If, after the examination notice
has been given, an application is made for the restraining order to be revoked
and the court orders that the examinations are not to proceed, the
approved examiner must give written notice withdrawing the examination notice
and must stop the examination if it has started. The approved examiner may give
a person a further examination notice if the application for revocation of the
restraining order is unsuccessful.
An examination is not prevented by the
institution or commencement of any criminal proceedings.
Subclauses 181(1)(2) and (3) enable the DPP and the approved examiner to
examine a person on oath or affirmation. The approved examiner may require the
person to take the oath or make the affirmation and can also administer it. The
oath or affirmation made by the person for the purposes of the examination is
that the statements the person will make will be true.
Subclause 181(4)
provides that the examination must not relate to a person’s affairs if the
person is no longer a person whose interests, transactions, ventures and
“affairs” can be the subject of an examination under either clause
174 or clause 175.
Sub clause 181(5) allows the approved examiner to
require the person to answer a question put to the person at the examination
that is relevant to the affairs of a person referred to in paragraph
174(1)(a)(b) or (c) or 175(1)(a)(b) or (c).
As provided in clause 174,
“affairs” includes the nature and location of any property.
This clause provides for the examination to take place in private. The
approved examiner, the person being examined and their lawyer, the DPP and any
person whom the approved examiner has directed may be present are the only
people entitled to be present at the examination.
This clause enables the approved examiner to determine when the lawyer of
the person being examined may address the approved examiner and examine the
person about matters on which the person has been examined. The approved
examiner can also stop the person’s lawyer addressing the approved
examiner or stop the examination by the lawyer if the approved examiner thinks
the lawyer is trying to obstruct the examination.
Subclause (1) enables the approved examiner if requested by a party
referred to in subclause 182(3) to conduct an examination by video link. . To
do this the facilities required by subclause 184(2) must be available, the
approved examiner must be satisfied that to require the person to attend the
examination would cause unreasonable expense or inconvenience and it would be in
the interests of justice to have the person examined by video link.
Subclause 184(2) requires the place of examination to be equipped with
appropriate facilities.
Subclause 184(3) enables the administration of
an oath or affirmation by video link by a person authorised by the approved
examiner at the place where the person is to be examined.
Subclause
184(4) enables the approved examiner to conduct an examination by telephone on
the request of a person referred to in paragraph 182(3) if the approved examiner
is satisfied that it is consistent with the interest of justice.
This clause relates to the record of the examination. The approved
examiner may record the statements made at the examination, and must do so if
requested by the person being examined or by the DPP. If the record is not a
written record, and the person being examined or the DPP so request, the
examiner must cause the record to be reduced to writing.
Where the
record is in writing, the approved examiner may require the person being
examined to read and sign it. However, if the person being examined signs it
because of that requirement, that in itself does not constitute an
acknowledgment that the record is accurate.
If the person being
examined requests a written copy of the record the approved examiner must
provide a written copy without charge; the record may be provided subject to
conditions which the examiner considers necessary to prevent improper
disclosure.
This clause enables an approved examiner to refer a question of law
arising at the examination to the court that made the examination order. That
can be done on the initiative of the approved examiner or at the request of the
person being examined or the DPP.
Subclause 187(1) allows an approved examiner to give directions
preventing or restricting disclosure to the public of matters contained in
answers or documents produced in the course the examination. That can be done
on the initiative of the approved examiner, at the request of the person being
examined or at the request of the DPP.
In deciding whether to give a
direction, subclause 187(2) requires the approved examiner to have regard to
whether any answer, document or matter arising during the examination is of a
confidential nature or relates to the commission or possible commission of an
offence. The approved examiner must also consider any likely unfair prejudice
to the person’s reputation that could be caused, whether it is in the
public interest to give the direction and any other relevant matter.
Subclause 188(1) provides an approved examiner in the performance of his
or her duties with the same protection and immunity as a Justice of the High
Court.
Sub clause 188(2) provides a lawyer appearing at the examination
on behalf of the person being examined or as or on behalf of the DPP with the
same protection and immunity as a barrister appearing for a party before the
High Court.
Subject to this Act subclause 188(3) provides a person being
examined with the same protection and, in addition to the penalties provided by
this Act, with the same liabilities as a witness in proceedings in the High
Court.
This clause makes it an offence for a person required by an examination
notice to attend an examination, to refuse or fail to attend the examination at
the time and place specified in the notice.
Subclause 190(1) creates a number of offences applicable to a person who
is attending an examination in order to answer questions or produce documents.
Pursuant to paragraphs 190(1)(a)-(d) the person cannot refuse or fail to
be sworn or make an affirmation, refuse or fail to answer a question, refuse or
fail to produce a document specified in the examination notice or, leave the
examination before being excused by the approved examiner.
Subclause
190(2) provides that paragraph 190(1)(c) does not apply if the person complied
with the notice to the extent that it was practicable to do so.
Subclause 191(1) provides that the offences in paragraphs 190(1)(b) and
(c) have no application if, under a law of the Commonwealth or a law of the
State or Territory in which the examination takes place, the person could not be
compelled in proceedings before a court to answer the question or produce the
document (as appropriate).
However, pursuant to subclause 191(2),
paragraphs 190(1)(b) and (c) apply if the only reason why the person could not
be so compelled is because of self incrimination, legal professional privilege,
or because the answer or the document would be statutorily inadmissible in legal
proceedings for a reason other than being privileged from disclosure.
Subclause 191(3) provides that a contractual obligation not to disclose
information or an obligation under a foreign law not to disclose information are
not reasons why a person cannot be compelled to answer a question or produce a
document.
This clause states the rule that an answer given or document produced in
an examination can not be used in civil or criminal proceedings against the
person who gave the answer or produced the document, and sets out exceptions to
that rule.
The answer or the document can be used in criminal
proceedings for giving false evidence, or in proceedings on an application under
this Act, or in proceedings ancillary to an application under this Act, or in
proceedings for enforcing a confiscation order, or in the case of a document in
civil proceedings in respect of a right or liability it confers. This last
provision is based on paragraph 13(2)(e) of the NSW Criminal Assets Recovery
Act 1990. It means that a document produced in a compulsory examination
retains its admissibility in relation to other proceedings about rights or
liabilities which are inherent to the document. For example, a contract for
sale remains enforceable between vendor and purchaser, even though it has been
produced in the examination. Its production in an examination does not alter
those rights.
The clause does not confer “derivative-use
immunity”. That is, it does not make inadmissible in civil or criminal
proceedings anything that is obtained directly or indirectly as a result of the
giving of the answer or production of the document.
This clause makes it an offence for a person to be present at an
examination if the person is not entitled under subclause 182(3) to attend the
examination. The maximum penalty that may be imposed in relation to this
offence is a fine of 30 penalty units.
This clause makes it an offence to breach a condition (imposed pursuant
to subclause 185(3) that relates to a record given to the person. The maximum
penalty that may be imposed in relation to this offence is a fine of 30 penalty
units.
This clause makes it an offence to publish a matter contained in answers
given or documents produced at an examination in contravention of a direction
given under clause 187. The maximum penalty that may be imposed in relation to
this offence is a fine of 30 penalty units.
Note: The provisions relating to the retention of certain
documents contained in Proceeds of Crime Act 1987 Part IV Division 4,
Obligation of Financial Institutions continue to apply.
Clause 196 outlines the procedure for the making and granting of
applications for production orders. Subclause 196(1) provides that a magistrate
may make a production order requiring a person to produce, or make available for
inspection, one or more property-tracking documents to an authorised officer.
That order may only be made on the application of an authorised officer of an
enforcement agency, and the magistrate must be satisfied that the person is
reasonably suspected of having possession or control of property-tracking
documents.
The definition of property-tracking document is included in
subclause 196(4). It is based on the definition of property-tracking document
in section 4 of the Criminal Assets Recovery Act 1990 (NSW) and is
intended to be wide enough to include property that could be the subject of a
restraining order.
The definition of property-tracking document
includes a document relevant to identifying, locating or quantifying property of
any person who has been convicted of, charged with, or is proposed to be charged
with, an indictable offence; or who is reasonably suspected of having, within
the last six years, engaged in conduct constituting a serious offence. Further,
the definition includes documents relevant to identifying or locating any
document necessary for the transfer of property of such a person.
In
addition to referring to documents about the property of a person, the
definition also includes documents relating to the proceeds of an indictable or
serious offence. The definition includes a document relevant to identifying,
locating or quantifying proceeds of an indictable offence, or an instrument of
an indictable offence, of which a person has been convicted, or with which a
person has been charged or is proposed to be charged. Further, it also refers
to a document relevant to identifying, locating or quantifying proceeds of a
serious offence, or an instrument of a serious offence, of which a person is
reasonably suspected of having committed within the last six years. In
addition, it also refers to a document relevant to identifying, locating or
quantifying proceeds in relation to an indictable offence. The definition also
includes a document relevant to identifying or locating any document necessary
for the transfer of any such property.
Finally, a property-tracking
document also includes a document relevant to identifying, locating or
quantifying literary proceeds in relation to an indictable offence or a foreign
indictable offence of which a person has been convicted or reasonably suspected
of having committed.
Clause 197 sets out what a production order must specify. Under
subclause 197(1), the order must specify the nature of the documents required,
the place at which the person must produce the documents or make the documents
available and the time at which, or the times between which this must be done
(which must be at least 14 days from the day that the order is given). The
production order must also set out the effect of the offences in clauses 204 and
205 if applicable.
Subclause 197(2) prevents an order being made in
respect of bankers’ books.
Under clause 198, the authorised officer is authorised to inspect, take
extracts from, or make copies of, a document produced or made available under a
production order.
Clause 199 outlines how long an authorised officer may retain documents
produced under a production order, and the rights that the person to whom a
production order is given has in relation to those documents. Under subclause
199(1), the documents may be retained for as long as is necessary for the
purposes of the Act. That is consistent with the current retention requirement
in paragraph 66(9)(d) of the Proceeds of Crime Act 1987.
The
person to whom a production order is given may require the authorised officer to
give the person a certified copy of the document retained, or require the
authorised officer to allow the person to inspect, take extracts from or make
copies of, the document.
Subclause 200(1) provides that it is not an excuse for failing to
produce, or to make available, a document as required by a production order, on
the ground that the production or making available of the document would tend to
incriminate the person or make him or her liable to a penalty, or constitute a
breach of an obligation not to disclose the existence or contents of the
document, or breach legal professional privilege.
Subclause 200(2)
provides a derivative use immunity, that is, any document produced or made
available, or any information, document or thing obtained as a direct or
indirect consequence of producing the document or making it available shall not
be admissible in evidence in criminal proceedings against the natural person
except for the offences of giving false or misleading information or documents
under the Criminal Code.
Clause 201 provides that a person required to produce a document under a
production order may apply to the court to vary the production order so that it
instead requires the person to make the document available for inspection. If
the court is satisfied that the document is essential to the business activities
of the person, it may vary the order.
Clause 202 enables a magistrate in a State, the Northern Territory ,
Norfolk Island or the Australian Capital Territory to issue a production order
in that State or Territory, a non-governing Territory or another State or
Territory where he or she is satisfied that there are special circumstances that
make the issue of the production order appropriate.
As with search
warrants, there may be a major conspiracy investigation where production orders
need to be simultaneously executed in a number of jurisdictions. In such
circumstances, it would be undesirable for applications to be made in each
jurisdiction, particularly if officers with the necessary knowledge of the
matter are all located in one jurisdiction. This would also protect the
security of the investigation.
Clause 203 makes it an offence to make a false or misleading statement
in, or in connection with, an application for a production order. The offence
is punishable by 12 months’ imprisonment, a fine of 60 penalty units, or
both.
Subclause 204(1) makes it an offence for a person given a production
order to disclose the existence or nature of the production order where the
order specifies that information about the order must not be disclosed. It is
also an offence under subclause 204(2) to disclose information to another person
if the other person could infer the existence or nature of the order from that
information. Each of those offences are punishable by a maximum of 2 years
imprisonment or a fine of 120 penalty units, or both.
Subclause 204(3)
sets out the exceptions to the offence which include where the disclosure is
made to obtain legal advice or legal representation, where disclosure is made
for the purposes of, or in the course of, legal proceedings, or where disclosure
is made to an employee, agent or other person in particular circumstances. The
defendant bears an evidential onus in relation to those exceptions.
Subclause 205(1) provides that it is an offence to fail to comply with a
production order where the order is given to the person and that person has not
been notified of ‘sufficient compliance’ in relation to the order.
Subclause 205(2) provides that a person is notified of sufficient compliance
where that person gives any authorised officer a statutory declaration stating
that the person does not have possession or control of the document, and the
officer notifies the person that the statutory declaration is sufficient
compliance with the production order. The maximum penalty is 6 months’
imprisonment or a fine of 30 penalty units, or both.
This is a form of investigative power, and exercised to allow the
investigator to make a decision on whether to seek a warrant or production
order, or for the purpose of proceedings under the Act. One of the reasons for
the Notice is for AFP or NCA investigators to discover if a person holds an
account with the particular institution: that is, there may be a known suspect,
but the location of their funds is not known. The provisions are based on
Recommendation 76 of the 1999 ALRC Report Confiscation that counts: A review
of the Proceeds of Crime Act 1987.
Clause 206 sets out the procedure that must be followed where a specified
officer gives a notice to a financial institution requiring the production of
information or documents relevant to certain matters.
Under subclause
206(1), a specified officer may give a written notice to a financial institution
requiring the production of any information or documents relevant to certain
account and transaction information. The notice must not be issued unless the
officer reasonably believes that giving the notice is required to determine
whether to take action under this Act, or in relation to proceedings under the
Act.
The specified officers who may issue a notice are the Commissioner
or Deputy Commissioner of the Australian Federal Police, a senior executive AFP
employee authorised in writing by the Commissioner, or a member of the National
Crime Authority (except in the course of a special investigation). It was the
view of the ALRC that, for the power to be used responsibly, it was appropriate
that it be exercised only at a very senior level.
Clause 207 sets out what a notice must contain. First, it must state
that the officer giving the notice believes that giving the notice is required
to determine whether to take action under this Act, or in relation to
proceedings under the Act. It must also specify the name of the financial
institution, the kind of information or documents required to be provided, and
the form and manner in which that information or those documents are to be
provided. Further, it must also state that the information or documents must be
provided within 14 days of the notice.
If the notice specifies that
information about the notice must not be disclosed, it must also set out the
effect of the offences in clauses 210 (disclosing existence or nature of a
notice) and 211 (failing to comply with a notice).
Clause 208 provides that a financial institution or one of its officers,
employees or agents are protected from any action, suit or proceeding in
relation to any action taken by the institution or person in relation to its or
their response to a notice under clause 206, or in the mistaken belief that
action was required under the notice. The same parties are also protected from
prosecution for money laundering offences in respect of the information provided
in response to a notice under clause 206.
Clause 209 Making false
statements in applications
This clause creates the offence of
providing a false or misleading statement in relation to an application for a
notice to a financial institution. The offence applies whether the statement is
given orally or in a document or other form. The maximum penalty which can be
imposed in relation to this offence is 12 months imprisonment, a fine of 60
penalty units, or both.
Clause 210 makes it an offence for a person given a notice under clause
206 to disclose the existence or nature of the notice where the notice specifies
that information about the notice must not be disclosed. The maximum penalty
which can be imposed in relation to this offence is 2 years’ imprisonment,
a fine of 120 penalty units, or both.
Clause 211(1) provides that it is an offence for a person to fail to
comply with a notice given under clause 206. The maximum penalty which can be
imposed in relation to this offence is 6 months’ imprisonment, a fine of
30 penalty units, or both.
Note: The provisions relating to the retention of certain
documents contained in Proceeds of Crime Act 1987 Part IV Division 4,
Obligation of Financial Institutions continue to apply.
Clause 212 sets out the procedure for the making of a monitoring order.
Under subclause 212(1), a Judge of a court with jurisdiction to deal with
criminal matters on indictment may make a monitoring order that a financial
institution provide information about transactions conducted during a particular
period through an account held by a particular person with the institution.
Under subclause 212(2), the Judge must not make the order unless
satisfied that there are reasonable grounds for suspecting that the person has
committed, or is about to commit, a serious offence; was involved in the
commission, or is about to be involved in the commission, of a serious offence;
or has benefited directly or indirectly, or is about to benefit directly or
indirectly, from the commission of a serious offence.
Subclause 212(3)
provides that the order may be made only on application by an authorised officer
of an enforcement agency.
Clause 213 Contents of monitoring
orders
Clause 213 states what a monitoring order must contain. It
must specify the name or names of the account holder; the kind of information
that the financial institution is required to provide; the time frame during
which the transactions must have occurred (beginning no earlier than the day on
which notice of the order is given to the financial institution and ending no
later than three months after the date of the order); the authorised officer and
enforcement agency to whom the information is to be provided; if applicable, the
consequences of unlawful disclosure (that is, offence provisions); and the form
and manner in which the information is to be given.
Clause 214 provides that a financial institution or its officers,
employees or agents are protected from any action, suit or proceeding in
relation to any action taken by the institution or person in relation to its or
their response to a monitoring order. The same parties are also protected from
prosecution for money laundering offences in respect of the information provided
in response to a monitoring order.
This clause creates the offence of providing a false or misleading
statement in relation to an application for a monitoring order. The maximum
penalty which can be imposed in relation to this offence is 2 years’
imprisonment, a fine of 120 penalty units, or both.
This clause creates offences of disclosing the existence and operation of
a monitoring order.
Subclauses 216(1) creates an offence for a person
to disclose the existence or operation of a monitoring order. It is also an
offence to disclose information to another person if the other person could
infer the existence or operation of the monitoring order from that information :
subclause 216(2)
Subclause 216(3) makes it an offence for a
person to make a record of, or disclose, the existence or the operation of a
monitoring order if that person receives information relating to that order but
that person is not authorised to receive the information.
Each offence
is punishable by a maximum of 5 years’ imprisonment or 300 penalty units,
or both.
Subclause 216(4) sets out the circumstances in which it is
permitted to disclose the existence or the operation of a monitoring order. The
information may be disclosed to the head of the enforcement agency or a senior
officer of that agency for the performance of that person’s duties, or for
purposes connected to legal or court proceedings; or to an officer or agent of
the financial institution for the purpose of ensuring that the order is complied
with; or a barrister or solicitor for the purpose of obtaining legal advice or
representation in relation to the order.
Clause 217 provides that it is an offence for a person to fail to comply
with a monitoring order. The maximum penalty which can be imposed in relation to
this offence is 6 months’ imprisonment, a fine of 30 penalty units, or
both.
Subdivision A – Issuing search
warrants
Note: The provisions relating to the
retention of certain documents contained in Proceeds of Crime Act 1987
Part IV Division 4, Obligation of Financial Institutions continue to apply.
Clause 218 Issuing a search warrant
Subclause 218(1) enables a magistrate to issue a search warrant if
satisfied by information on oath that there are reasonable grounds for
suspecting that there is, or will be within the next 72 hours, evidential
material at the premises. The 72 hour limit permits a warrant to be obtained in
advance where intelligence suggests that evidential material is to be taken to
specified premises.
Subclause 218(2) provides that that if the
application for a warrant is made by telephone or other electronic means, as set
out in clause 223, the period in which there are reasonable grounds to suspect
that the evidential material will be at the premises is reduced from 72 to 48
hours.
Subclause 218(3) provides that a search warrant may be issued
only on application by an authorised officer of an enforcement agency.
Clause 219 Documents identifying etc. evidential material
etc.
This clause applies if the evidence in respect of which a search
warrant is being issued is a property tracking document.
Clause 219
prevents a magistrate from issuing a search warrant in respect of a property
tracking document unless the documents concerned are not capable of being
identified or described with sufficient particularity for the purpose of
obtaining a production order; or that a production order has not been complied
with or there are reasonable grounds to suspect that a production order would
not be complied with; or that the investigation is likely to be seriously
prejudiced by seeking a production order if an authorised officer does not gain
immediate access to the document without notice to any person.
Clause
220 Additional contents of the information
Subclause 220(1) provides
that if the person applying for the warrant suspects that it will be necessary
to use firearms, the grounds for the suspicion must be stated in the
information. This subclause is intended to alert the issuing officer to the
possibility of violence. This is considered particularly desirable where it is
proposed that tactical response units, special weapons squads and the like may
be used.
Subclause 220(2) requires a person re-applying for a fresh
warrant to search premises that were the subject of a previous search warrant to
include particulars of the application and its outcome in the information.
Subclause 221(1) sets out the matters which must be specified in a
warrant. These matters include: the property in respect of which action has
been or could be taken under this Act, and the nature of that action; a
description of the premises; the kind of evidential material that is to be
searched for; the name of the authorised officer; the time at which the warrant
expires; whether the warrant may be executed at any time or only during
particular hours; that the warrant authorises, in particular circumstances, the
seizure of other things found at the premises; and that the warrant authorises,
in particular circumstances, an ordinary or frisk search.
Subclause
219(2) provides that the search warrant must state that it expires at a time
that is not later than the end of the seventh day after the day on which it is
issued, or, in the case of warrant issued by telephone, fax or by other
electronic means, no later than 48 hours after the warrant is issued.
Subclause 219(3) ensures that the time limit on the duration of a
warrant does not prevent the issue of further warrants for the same premises.
Subclause 222(1) is based on subsection 3F(1) of the Crimes Act
1914 and sets out the matters that are authorised by a search warrant. A
warrant authorises entry and search. It authorises seizure of evidential
material of the kind specified in the warrant, and of other kinds of evidential
material found at the premises in the course of the search that is necessary to
preserve. The warrant also authorises the searching for, and recording of,
fingerprints and other forensic samples found at the premises. If a warrant
expressly authorises the frisk or ordinary search of a person at, or near, the
premises – the executing officer or person assisting is empowered to
search such a person suspected of having evidential material in his or her
possession.
Subclause 222(2) is based on subsection 3F(5) of the
Crimes Act 1914 and provides that a search warrant authorises an
executing officer to make things seized under the warrant available to other
enforcement agencies where it is necessary for the purposes of the investigation
or prosecution of an offence to which the things relate. The purpose of this
subclause is to permit the seized items to be exchanged where those items are
relevant to an offence appropriately dealt with by another agency (for example,
Australian Customs Service).
Subdivision B – Applying for
search warrants by telephone or other electronic means
Clause
223 Applying for search warrants by telephone or other electronic
means
Subclause 223(1) enables an authorised officer to apply for the
issue of a warrant by telephone, fax or other electronic means in an urgent case
or where the delay caused by applying in person could frustrate the execution of
the warrant. Urgency can arise because of circumstances requiring immediate
action or where the remoteness of the location of the search involves
unacceptable delay.
Subclause 223(2) provides that an application under
subclause 223(1) must include all the information that would be required in an
ordinary application and, if necessary, the application may be made before the
information is sworn.
Subclause 223(3) enables the magistrate to require
communication by voice to the extent that it is practicable in the circumstances
and any further information.
Clause 224 Issuing warrants by
telephone etc.
Subclause 224(1) enables a magistrate to complete and
sign the same form of search warrant that could be issued under clause 218 if
satisfied that the warrant should be issued urgently, or that the delay which
would occur if an application were made in person would frustrate the effective
execution of the warrant.
The magistrate is required to inform the
applicant of the terms of the warrant and the day and time at which it was
signed by the appropriate electronic means. The applicant must complete a form
setting out the substance of those terms and include information on the name of
the magistrate and the relevant date and time communicated by the magistrate.
The applicant must, by the end of the day after the warrant expires, or
by the end of the day after the warrant is executed, whichever event is earlier,
give the magistrate the completed form of warrant and, if the information had
not been sworn, the sworn information. Those documents must be attached by the
magistrate to the form of search warrant completed by the magistrate.
This provision is particularly necessary in remote areas or where for
some reason a magistrate is not readily available.
Clause 225 provides that where the form of warrant signed by the
magistrate is not produced in evidence in proceedings where it is material for a
court to be satisfied that the exercise of a power under a search warrant issued
under Subdivision B was duly authorised, the court must assume that the exercise
of a power under a search warrant was not duly authorised unless the contrary is
proved.
Clause 226 provides that it is an offence for a person to state a name of
a magistrate in a form of search warrant issued by telephone, fax or by other
electronic means where the name is not the name of the magistrate that issued
the warrant. This provision is based on subsection 3ZU(a) of the Crimes Act
1914 and is intended to prevent abuses of telephone search warrants by law
enforcement officers.
Clause 227 provides that it is an offence for a person to state a matter
in a form of search warrant issued by telephone, fax or by other electronic
means where the matter departs in a material particular from the form authorised
by the magistrate. This provision is based on subsection 3ZU(b) of the
Crimes Act 1914 and, as in the case of clause 226, is intended to prevent
abuses of telephone search warrants by law enforcement officers.
Clause 228 provides that it is an offence for a person to execute or
present a form of search warrant issued by telephone, fax or by other electronic
means that has not been approved by the magistrate, or departs in a material
particular from the terms authorised by the magistrate. This provision is based
on subsection 3ZU(c) of the Crimes Act 1914 and, as in the case of
clauses 226 and 227, is intended to prevent abuses of telephone search warrants
by law enforcement officers.
Clause 229 provides that it is an offence for a person to give to a
magistrate a form of search warrant issued by telephone, fax or by other
electronic means that is not the form of search warrant that the person
executed. This provision is based on subsection 3ZU(d) of the Crimes Act
1914 and, as in the case of clauses 226, 227 and 228, is intended to prevent
abuses of telephone search warrants by law enforcement
officers.
Subdivision C – Executing search
warrants
Clause 230 Warrants that must be executed only
during particular hours
Clause 230 obliges those executing a search
warrant to comply with limitations particularised in the warrant relating to
hours during which it may be executed. It is based on subsection 3F(3) of the
Crimes Act 1914.
Subclause 231(1) provides that a search warrant can not authorise a strip
search or a search of person’s body cavities. Strip searches in a post
arrest situation are dealt with by provisions in Part 1AA of the Crimes Act
1914 while provisions authorising the taking of forensic procedures from
suspects is dealt with in Part 1D of the Crimes Act 1914. Body cavity
searches in relation to narcotic offences are dealt with in the Customs Act
1901.
Subclause 231(2) provides that a search warrant that
authorises an ordinary search or a frisk search must, if practicable, be
conducted by a person of the same sex as the person being searched. It also
prohibits a different search being conducted from the one authorised by the
warrant.
Subclause 231(3) provides that a person assisting in the
execution of the warrant but who is not an authorised officer, must not take
part in searching a person.
Clause 232 outlines the assistance that may be obtained and force that
may be used in executing a warrant. First, an executing officer (and/or
authorised officer assisting in executing the warrant) may obtain such
assistance and use such force against persons and things as is necessary and
reasonable in the circumstances. The provision is based on section 3H of the
Crimes Act 1914 which restates the common law position.
However,
where the person assisting in the execution of the warrant is not an authorised
person, that person is only authorised to use force in relation to things (for
example, a locksmith assisting law enforcement officers to open a safe) and not
persons.
Clause 233 Announcement before entry
Subclause
233(1) requires an executing officer who is about to enter premises under a
search warrant to announce that he or she is about to enter, and provide the
occupier or other person at the premises, the opportunity of allowing the
officer inside. Where the occupier of the premises is there, or a person who
represents the occupier is present, the officer must identify him or herself to
that person.
However, subclause 233(2) authorises the officer not to
comply with those requirements if the officer believes on reasonable grounds
that to do so would compromise the safety of a person, including the officer, or
would frustrate the effective execution of the warrant.
Clause 234
Details of warrant to be given to occupier etc.
Subclause 234(1)
provides that, if a warrant in relation to premises is being executed, a copy of
the warrant and a document setting out the rights of the person must be made
available to the occupier of the premises (or another person who apparently
represents the occupier) if the occupier or that other person is present at the
premises. This provision is consistent with a recommendation of the Senate
Standing Committee for the Scrutiny of Bills (para 1.68 of Report 4/2000). In
addition, subclause 234(2) provides that a copy of the warrant must also be made
available to the person being searched under the warrant.
The copy of
the warrant need not include the signature of the magistrate or the seal of the
court. That is to ensure that forgery or wrongful use of the warrant copy is
prevented. It is based on subsection 3H(5) of the Crimes Act 1914, which
was included at the specific request of the then ACT Chief Magistrate.
Subclause 235(1) provides that an occupier who is present at the premises
is entitled to observe at the premises during the execution of a search warrant.
However, the right ceases if that person impedes the search, or if that person
is under arrest and allowing the person to observe the search would interfere
with the objectives of the search. The clause does not prevent two or more
areas of the premises being searched at the same time.
This clause is
based on section 3P of the Crimes Act 1914 and is a safeguard which
ensures that the occupier has the right to observe whether the search warrant is
being executed according to its terms.
Clause 236 is based on section 3J of the Crimes Act 1914 and sets
outs the specific powers available to officers executing search warrants.
Subclause 236(1) permits the taking of photographs (including video
recordings) of the premises or of things at the premises in certain
circumstances.
Subclause 236(2) allows for a limited interruption in
the execution of a warrant. The executing officer and persons assisting may, if
the warrant is still in force, complete its execution after ceasing and leaving
the premises for not longer than one hour, or longer if the occupier consents in
writing.
Subclause 236(3) provides that where the execution of a
warrant is stopped by order of a court which is later revoked or reversed on
appeal its execution may be completed provided the warrant is still in force.
Clause 237 is based on section 3K of the Crimes Act 1914 and
empowers the executing officer or person assisting to bring to the warrant
premises any equipment reasonably necessary for the examination or processing of
things found at the premises to determine whether they may be seized.
The clause also allows the executing officer or person assisting to
operate equipment already at the warrant premises to carry out the examination
or processing if the officer or person believes on reasonable grounds that the
equipment is suitable for this purpose or the examination or processing can be
performed without damaging the equipment or thing. This is especially useful
for scanning audio or video recordings.
Clause 238 enables a thing found at premises during the course of a
search to be moved to another place for examination or processing in order to
determine whether it may be seized. That may occur provided the occupier
consents, or, if the occupier does not consent, provided that two other
conditions are satisfied. First, there must be reasonable grounds to believe
that the thing contains or constitutes evidential material. And, secondly, it
is significantly more practicable to do so having regard to the timeliness and
cost of examining or processing the thing at another place and the availability
of expert assistance.
This power may be useful where, for example, a
substance believed to be narcotics is discovered and it is necessary to take it
to a laboratory for analysis. In many cases, it would not be practicable to
analyse it at most premises.
There are safeguards ensuring that the
occupier’s rights in relation to the seized thing are protected.
Subclause 238(2) provides that the thing may be moved to another place for
examination or processing for no longer than 72 hours. If an executing officer
wishes to get an extension of that time limit, that officer must apply to a
magistrate for an extension if the officer believes on reasonable grounds that
the thing cannot be examined or processed within 72 hours. Notice of the
application must be given to the occupier and the occupier has an entitlement to
be heard in relation to that application. Finally, the executing officer, if it
is practicable to do so, must inform the occupier of the address of the place to
which the seized thing has been taken; the time at which the examination or
processing will be carried out; and allow the occupier or the occupier’s
representative to be present during the examination or processing.
Subclause 239(1) provides that the executing officer or the person
assisting may operate electronic equipment at the premises to access data
(whether at the premises or elsewhere) if he or she believes on reasonable
grounds that the data might constitute evidential material and the equipment can
be operated without damaging it.
Subclause 239(2) provides that, if the
data accessed by the electronic equipment might constitute evidential material,
it may be copied to a disk, tape or other [similar associated] device brought to
the premises (or at the premises, provided the occupier consents).
If
it is found that evidential material is accessible using the equipment, the
executing officer or person assisting may seize the equipment and any disk, tape
or similar device. Or, if the material can, by using facilities at the
premises, be put in documentary form, the executing officer or person may
operate the facilities to put the material in that form and seize the documents
so produced. That would cover the situation where it may be possible to print
out information from a computer terminal.
Finally, subclause 239(4)
provides that an authorised officer may seize equipment under subclause 239(3)
only if it not practicable to copy the data or material into documentary form,
or if possession of the equipment by the occupier could constitute an offence.
Clause 240 Person with knowledge of a computer or a computer system
to assist access etc.
Clause 240 would enable a law enforcement
officer executing a search warrant to apply to a magistrate for an
‘assistance’ order in relation to data held in or accessible from a
computer. To grant the order, the magistrate would have to be satisfied that
(i) there are reasonable grounds for suspecting that evidential material is
accessible from the computer; (ii) the specified person falls within a certain
category of persons (for example, the owner or lessee of the computer); and
(iii) the specified person has certain knowledge concerning the computer.
Although there is no requirement to provide such assistance under the
Crimes Act 1914 search warrant provisions, assistance requirements are
common in Commonwealth regulatory legislation.
Subclause 241(1) provides that the executing officer or a person
assisting may secure the equipment by locking it up or guarding it if he or she
believes on reasonable grounds that the evidential material may be accessible by
operating the equipment at the premises; that expert assistance is needed to
operate the equipment; and the evidential material may be destroyed, altered or
otherwise interfered with if the equipment is not secured. This is necessary to
ensure that where the equipment is more sophisticated than expected and cannot
be accessed or moved, then the opportunity to obtain expert assistance and to
preserve evidential material is not lost. Material accessible on a computer may
be lost with a swift keystroke from an operator. It is not possible to
pre-program the equipment to erase the evidence in this way.
Subclause
241(2) requires the giving of notice to the occupier in cases where equipment
may be secured for a period of up to 24 hours. Subclause 241(3) allows the
equipment to be secured for either 24 hours or such lesser period when expert
assistance is obtained to operate the equipment.
If the executing officer
or person assisting believes on reasonable grounds that the expert assistance
will not be available within 24 hours, he or she may apply to a magistrate to
extend the period. Before applying for the extension, the executing officer or
person assisting must notify the occupier of the premises of his or her
intention to apply for an extension. The occupier is entitled to be heard in
relation to the application.
Subclause 241(6) provides that the
provisions of this Division relating to the issue of search warrants apply with
necessary modifications to the issuing of extensions.
Clause 242 provides that, if damage is caused to equipment as a result of
it being operated as mentioned in clauses 237 and 239 or the data recorded on
the equipment is damaged or corrupted, and the damage resulted from insufficient
care being exercised either in selecting the person to operate the equipment or
by the person operating it, compensation is payable to the owner.
Reasonable compensation, as agreed between the Commonwealth and the
owner or user, is payable by the Commonwealth out of money appropriated by the
Parliament. In determining the amount of damages payable regard is to be had to
whether the occupier had provided any warning or guidance on the operation of
the equipment. This is to minimise compensation in cases where there has been a
deliberate programming of software to destroy or cause damage if not accessed in
a particular manner or where the occupier failed to mitigate damage by providing
warning or guidance.
If there is disagreement between parties as to the
amount of compensation, the owner or user may institute proceedings in the
Federal Court for compensation.
This clause is based on section 3N of the Crimes Act 1914 and
requires an authorised officer to give to the occupier, on request, a copy of a
thing or information seized that can be readily copied. This does not apply in
certain circumstances where the thing or information was seized by use of
electronic equipment at the premises, or if possession by the occupier of the
document, film, computer file, thing or information could constitute an offence.
This provision is based on Recommendation 75 of the ALRC Report
Confiscation that counts: A review of the Proceeds of Crime Act 1987, in
response to submissions made to the Commission about problems arising with time
constraints on the execution of search warrants on financial institutions. It
was said that it would be helpful if search warrants could be executed but
remain in force for a specified period of time, giving financial institutions
sufficient time to gather documents, search indices and collate documents for
delivery to investigators. It was also said that further warrants are required
where documents are located at different times by financial institutions after
the original warrant has been executed and is therefore ‘spent’.
Seeking further warrants in these circumstances is very time consuming for both
investigators and issuing officers. The provision is intended to be
facilitative, and assist in overcoming those difficulties.
The clause provides that documents that were on, or accessible from, the
premises of a financial institution at the time when a search warrant was
executed, but were unable to be located at that time, and the occupier of the
premises provides them as soon as practicable after the execution of the
warrant, then those documents are taken to have been seized under the warrant.
DIVISION 2 – STOPPING AND SEARCHING
CONVEYANCES
Clause 245 Searches without warrant in emergency
situations
Clause 245 applies where an authorised officer suspects on
reasonable grounds that a thing constituting evidential material is in or on a
conveyance (aircraft, vessel or vehicle). The authorised officer must also
suspect that it is necessary to seize the thing to prevent concealment, loss or
destruction and that it is necessary to act without the authority of a search
warrant because the circumstances are serious and urgent. Under such
circumstances, a constable may stop, detain and search the conveyance, and seize
the thing.
If, in the course of searching for the thing, the officer
finds another thing constituting evidential material, the officer may seize it
to prevent its concealment, loss or destruction because the circumstances are
serious and urgent.
Subclause 245(4) provides that the officer must
exercise the powers subject to clause 246 which provides various safeguards.
Clause 244 sets out how an authorised officer exercises a power under
clause 245. When an authorised officer exercises powers under clause 245, he or
she may use such assistance as is necessary; must search the conveyance in a
public place or place to which the public have ready access, and must not detain
the conveyance for longer than is necessary and reasonable to search it and any
container found in or on the conveyance.
While the authorised officer
may use necessary and reasonable force to open a part of the conveyance or any
container, he or she must not cause damage unless the person in charge of the
conveyance is absent and therefore cannot be given an opportunity to open the
container. In those circumstances, the constable may open it.
DIVISION 3 – GENERAL
Clause 247 Application of
Part
Clause 247 provides that nothing in Part 3-5 is intended to
limit or exclude another law of the Commonwealth, a State or of a Territory
relating to the search of persons or premises; the stopping, detaining or
searching of conveyances; or the seizure of things. This ensures that, despite
references in Part 3-5 to the search of persons or premises etc, officers
investigating offences under the Act will still be able to avail themselves of
any relevant laws (for example, similar provisions in Part 1AA of the Crimes
Act 1914).
Clause 248 requires an executing officer or person assisting to provide a
receipt (which may cover two or more things) for a thing seized under a warrant;
a thing moved to another place for examination or processing; or a thing seized
during a search without warrant in an emergency situation.
Subclause 249 provides that, subject to certain exceptions, where things
are seized under Part 3-5 they must be returned if the reason for their seizure
ceases to exist or it is decided that the seized items are not to be used in
evidence. Additionally, if an authorised officer seizes a thing in an emergency
situation under clause 245, the authorised officer must return it when the
period of 60 days after the thing’s seizure ends. This reflects the fact
that seizure in these circumstances is not judicially sanctioned and is based on
section 3ZV of the Crimes Act 1914.
The exceptions to the above
situations are where the thing is forfeitable to the Commonwealth (for example,
drugs), there is a dispute as to the ownership of the thing or where the
authorised officer is otherwise authorised by law or a court or tribunal to
retain, destroy or dispose of the thing.
Clause 250 Authorised
officer may apply for a thing to be retained for a further
period
Clause 250 allows a magistrate to order that a seized thing be
retained for a period longer than 60 days, or a period previously specified in
an order of a magistrate under this clause, where proceedings in respect of
which the thing might afford evidence have not commenced. The authorised
officer who proposes to make the application for the time extension must take
reasonable steps to discover each person who may be affected by the retention of
the thing and, if it is practicable to do so, notify those persons.
Clause 251 provides that the magistrate may order that the authorised
officer retain the thing for a specified period if the magistrate is satisfied
that retention is necessary for the purpose of initiating or conducting
proceedings under this Act.
This clause put beyond doubt that this Part does not in any way affect
the law relating to legal professional privilege. Under that law, documents
which are subject to legal professional privilege cannot be seized.
Clause 253 provides that an magistrate in a State, the Northern
Territory, Norfolk Island or the Australian Capital Territory may issue a search
warrant in that State or Territory; another State or Territory if he or she is
satisfied that there are special circumstances that make the issue of the
production order appropriate; or a non-governing Territory.
This
provision may also assist where there may be a major conspiracy investigation
and search warrants need to be simultaneously executed in a number of
jurisdictions. In such circumstances, it would be undesirable for applications
to be made in each jurisdiction, particularly if officers with the necessary
knowledge of the matter are located in one jurisdiction. This would also
protect the security of the investigation.
Clause 254 which makes it an offence to make a false or misleading
statement in, or in connection with, an application for a search warrant.
Clause 255 Property to which the Official Trustee’s powers and
duties under this Part apply
Clause 255 provides that the OT may the
exercise the powers, and shall perform the duties, that are conferred or imposed
under this Part in relation to property of which a court has ordered the OT to
take control and custody under clause 36. Such property is called
“controlled property”. This clause further provides that the OT may
exercise the powers, and shall perform the duties, that are conferred or imposed
under Division 4 in relation to any property that is the subject of a
restraining order, whether or not the property is controlled
property.
DIVISION 2 – OBTAINING INFORMATION ABOUT CONTROLLED
PROPERTY
Clause 256 provides that the OT, or another person authorised in writing
by the OT to exercise powers under this clause, may require the production of
books in accordance with this clause.
Subclause 256(1) provides that
such a requirement may be made of the suspect in relation to the restraining
order covering the controlled property or any other person entitled to, or
claiming an interest in, the controlled property. The requirement may be made
to ensure that all the controlled property is under the OT’s custody and
control or to ensure the effective exercise of the OT’s powers or
performance of the OT’s duties under this Part in relation to controlled
property.
Subclauses 256(2), (3) and (4) set out the manner and
parameters of requirements made under this clause.
Subclause 256(5)
provides that if books are produced in accordance with a requirement made under
this clause, the person making the requirement to produce books under this
clause, or the person specified in subclause 256(3), may make copies of the
books or take extracts from the books, and may further require the person who is
required to produce the books, or any other person who was a party to the
compilation of the books, to explain to the best of his or her knowledge and
belief any matter relating to the compilation of the books or to which the books
relate.
Subclause 256(6) provides that if books are not produced in
accordance with a requirement made under this clause, the person making the
requirement to produce books under this clause, or the person specified in
subclause 256(3), may further require the person who is required to produce the
books under this clause to state, to the best of his or her knowledge and
belief, where the books may be found and who last had possession, custody or
control of the books and where that person may be found.
Subclause 256(7)
provides that the production of books under this clause does not prejudice a
lien held in relation to the books.
Clause 257 provides that where a restraining order covers controlled
property, the suspect must assist the OT as specified in paragraphs 257(a) to
(d). The assistance must be rendered unless the suspect is excused by the OT
or is prevented from providing assistance by reason of illness or other
sufficient cause.
Clause 258 grants the OT power to obtain information and evidence.
Subclause 258(1) provides that the OT may exercise this power by giving written
notice that requires a person to give such information as described in paragraph
258(1)(a) or to attend before the OT or other authorised person to give evidence
or produce books as stated in paragraph 258(1)(b). Subclause 258(2) provides
that the OT or authorised person may require the information or evidence to be
given on oath, either orally or in writing, and may administer an oath for that
purpose.
Subclause 259(1) provides that a person is not excused from giving
information or a document under this Part on the ground that doing so would tend
to incriminate the person or expose the person to a penalty.
However
subclause 259(2) provides that in relation to a natural person any information
or document given, or any information, document or thing obtained as a direct or
indirect result of giving the information or document, is not admissible in
evidence in criminal proceedings against the person except proceedings relating
to giving false or misleading information and documents.
This clause creates two offences in relation to failing to comply with a
requirement imposed under clauses 256 and 257, relating to the OT’s powers
to require the production of books and to require specified forms of assistance.
This clause creates an offence of failing to comply with a requirement
under paragraph 258(1)(a) to give such information as the OT requires for the
purpose of exercising powers or the performance of the OT’s duties under
this Part.
This clause creates an offence of failing to attend and produce books, or
appear and report, as required by paragraph 258(1)(b).
This clause creates offences of failing, as required by a notice given
under paragraph 258(1)(b) to be sworn or make an affirmation, or answer a
question that the person is required by the OT or authorised person to answer,
or produce any books that the person is required by the notice to produce.
This offence provisions would also cover a person who prevaricates or
evades in the course of giving evidence as required by a notice given to the
person under clause 258(1).
Clause 264 provides that the OT may do anything that is reasonably
necessary for the purpose of preserving controlled property; the clause also
specifies a number of things that the OT may do.
Specifically, the OT may
become a party to any civil proceedings affecting the property, and may take out
insurance for the property. If any of the property consists of securities or
investments, the OT may realise that property. If any of the property is a
business, the person may do anything necessary (or convenient) to carry on the
business in a sound commercial basis; the OT may also employ or terminate the
employment of any employees of the business.
Clause 265 Rights attaching to shares
Clause 265 provides
that the OT may exercise the rights attaching to any controlled property that is
shares as if the OT were the registered holder of the shares. The OT may
exercise such rights to the exclusion of the registered
shareholder.
Clause 266 Destroying or disposing of
property
This clause grants the OT power to destroy or dispose of
controlled property. Subclause 266(1) states that the OT may destroy controlled
property if it is in the public interest to do so or if it is required for the
health or safety of the public.
Subclause 266(2) grants the OT power to
dispose of controlled property, by any means, if the circumstances described in
any of paragraphs 266(2)(a) to (c) exist. Paragraphs 266(2)(a) to (c) concern
agreement between all entitled parties to the disposal, the likelihood of the
property losing value in the OT’s opinion, and the OT’s opinion that
the cost of controlling the property until final resolution will exceed, or
represent a significant proportion of, the value of the property when it is
finally dealt with.
Clause 267 Notice of proposed destruction or
disposal
Clause 267 provides that the OT must give written notice of
the proposed destruction or disposal of the controlled property to the owner of
the property and to any other person whom the OT has reason to believe may be
entitled to the property. A person who receives such written notice may object
in writing within 14 days of receiving the notice.
Clause 268
Procedure if person objects to proposed destruction or disposal
Clause 268 sets out the procedure that must be followed if the OT
intends to proceed with the destruction or disposal of controlled property where
a person has objected to the proposed destruction or disposal.
Subclause
268(1) states that the OT must apply to the court that granted the restraining
order concerning the property for an order that the OT may destroy or dispose of
the property. Subclause 268(2) provides that a court may make such an order if
it is in the public interest to do so or it is required for the health of safety
of the public. In determining whether such an order should be made, the court
may take into account any matters it sees fit, including the matters set out in
paragraphs 268(3)(a) to (d).
Subclause 268(4) provides that the court may
make an order for destruction or disposal of the controlled property if, in the
court’s opinion, the property is likely to lose value or the cost of
controlling the property until it is finally dealt with by the OT is likely to
exceed, or represent a significant proportion of, the value of the property when
it is finally dealt with.
Subclause 268(5) states that the court may also
order that a specified person bear the costs of controlling the property until
it is finally dealt with by the OT or order that a specified person bear the
costs of an objection to a proposed destruction or disposal of the
property.
Clause 269 provides that any proceeds realised from the sale of
controlled property under clause 266 are taken to be covered by the restraining
order that covered that controlled property. It further provides that if the
restraining order covered the controlled property on the basis that the property
was proceeds of, or an instrument of, an offence to which the order relates, the
proceeds realised from the sale of the property continue to be proceeds of, or
an instrument to, that offence.
Clause 270 provides that a court may, if subclause 270(2), (3) or (4)
applies, direct the OT to pay the Commonwealth an amount equal to the penalty
amount under a pecuniary penalty order or literary proceeds order out of
property that is subject to a restraining order.
Subclause 270(2)
provides that a court may make such a direction if the order is made against a
person in relation to one or more offences and the restraining order has already
been made against that person in relation to that offence or offences or in
relation to one or more related offences.
Subclause 270(3) permits the
court to make an order under subclause 270(1) if the pecuniary penalty order or
literary proceeds order has been made against a person in relation to one or
more offences, and a restraining order is subsequently made against the person
in relation to one or more of those offences or against property of another
person in relation to which an order is in force under subclause 135(1) in
relation to the pecuniary penalty order or subclause 162(1) in relation to a
literary proceeds order. Subclauses 135(1) and 162(1) provides that property
which a court finds is subject to a person’s effective control may be
declared by the court to be available to satisfy, respectively, a PPO or LPO
made against that person.
Subclause 270(4) provides that the court that made the pecuniary penalty
order or the restraining order may, on application by the DPP, make a direction
under subclause 270(1) if the pecuniary penalty order or literary proceeds order
has been made against a person in relation to one or more offences, and a
restraining order has been made against the person in relation to one or more of
those offences or against property of another person in relation to which an
order is in force under subclauses 135(1) or 162(1) in relation, respectively to
the PPO or LPO.
Clause 271 provides that for the purposes of enabling the OT to comply
with a direction given by a court under clause 270, the court may make the
direction or appointment specified in paragraphs 271(1)(a) and (b). Clause 270
provides that a court may direct the Official Trustee to pay the Commonwealth an
amount equal to the penalty amount under a pecuniary penalty order or literary
proceeds order, out of property that is subject to a restraining
order.
Paragraph 271(1)(a) permits the court to direct the OT to sell or
otherwise dispose of such of the property that is subject to the restraining
order as the court specifies.
Paragraph 271(1)(b) permits the court to
appoint an officer of the court, or any other person, to execute any deed or
instrument in the name of the person who owns or has an estate, interest or
right in the property and to do any act or thing necessary to give validity and
operation to the deed or instrument.
Subclause 271(2) provides that the
execution of the deed or instrument by the person appointed by an order under
this clause has the same force or validity as if the deed or instrument had been
executed by the person who owned or had the estate, interest or right in the
property.
This clause provides that if the OT is given a direction under clause 270
in relation to property, the OT must, as soon as practicable after the expiry of
the appeal period under clause 273, carry out the matters prescribed in
paragraphs 272(1)(a) to (c) as applicable.
Paragraph 272(1)(a) directs
the OT to sell or otherwise dispose of property that is not
money.
Paragraph 272(1)(b) directs the OT to apply property that is
money, and the amounts received from the sale or disposition of other property,
in payment of the costs, charges, expenses and remuneration of the kind referred
to in subclause 277(1), being incurred or payable in connection with the
restraining order and payable to the OT under the regulations. Subclause 277(1)
provides that the payment of the OT’s costs and remuneration may be
specified in the regulations.
Paragraph 272(1)(c) directs the OT to pay
the remainder of the money and amounts received from the sale or disposition of
property to the Confiscated Assets Account.
Subclause 272(2) provides
that if the remainder of the money and amounts received from the sale or
disposition of property exceeds the penalty amount, the OT must pay an amount
equal to the penalty amount to the Confiscated Assets Account, and pay the
balance to the person whose property was subject to the restraining
order.
Clause 273 provides that the OT must not carry out a direction given
under clause 270 in relation to property until the end of the appeal period
under this clause. Clause 270 provides that a court may direct the OT to pay
the Commonwealth an amount equal to the penalty amount under a pecuniary penalty
order, out of property that is subject to a restraining order. Subclause 273(1)
provides that the OT must not apply property that is money, and must not sell or
otherwise dispose of property that is not money, until the end of the appeal
period under this clause.
Subject to subclause 273(3), subclause 273(2)
prescribes the appeal period for the purposes of this clause. If the period
provided for the lodging of an appeal against the pecuniary penalty order to
which the direction relates has ended without any such appeal having been
lodged, then the appeal period for the purposes of this clause is the end of
that period. If an appeal against the pecuniary penalty order has been lodged,
the appeal period for the purposes of this clause is when the appeal lapses or
is finally determined.
Subclause 273(3) provides the appeal period for
the purposes of this clause where the person is convicted of the offence, or any
of the offences, to which the pecuniary penalty order relates. In such an
instance, the appeal period for the purposes of this clause is when the period
provided for lodging an appeal against the conviction or convictions to which
the direction relates has ended without such an appeal having been lodged, or,
were such an appeal has been lodged, when the appeal lapses or is finally
determined. Subclause 273(3) further provides that the appeal period for the
purposes of this clause is at the later of the points in time determined under
subclauses 273(2) or (3).
Subclause 273(4) states deeming provisions for
the purposes of determining the appeal period for the purposes of this clause
under subclause 273(3).
Clause 274 Discharge of pecuniary penalty
orders and literary proceeds orders by credits to the Confiscated Assets
Account
Clause 274 provides that if the OT pays money to the
Confiscated Assets Account under this Division in satisfaction of a
person’s liability under a pecuniary penalty order, the person’s
liability under the pecuniary penalty order is discharged to the extent of the
payment.
Clause 275 Effect of bankruptcy petitions on
directions
Where a court provides directions (pursuant to clause 270)
to the OT to pay an amount to the Commonwealth from the property of a person,
those directions are affected by a subsequent notification of a bankruptcy
petition against that person (whether the petition is filed by the
person’s debtor or creditor).
Until the petition has lapsed, been
withdrawn or been dealt with by a bankruptcy court, the OT cannot take any
action under the direction to sell the person’s property or pay the
directed amount of money.
This clause provides that money that is in the control of the OT due to a
restraining order must not be paid into the Common Investment Fund under the
Bankruptcy Act 1966, despite anything in that Act.
The costs, charges and expenses incurred by the OT in connection with
their exercise of powers and the performance of their duties and function under
this Act may be subject of a regulation: paragraph 277(a).
The
regulations may also make provision relating to the remuneration of the OT:
paragraph 277(b).
Clause 278 Income generated from controlled
property
Clause 278 enables the OT to apply any income which is
generated from controlled property to the payment of the OT’s expenses etc
which are provided for in regulations made pursuant to clause 277.
If the
property is returned to its owner, the OT must ensure that the difference
between the amount paid to the OT from the income of the controlled property and
the necessary expenditure by the OT on maintenance of the property or to
generate income from the property, is refunded to the owner. This ensures that
where the person’s property is returned to him or her, the income
generated by the property was only used for purposes related to that property,
and not to remunerate the OT or pay its costs etc under clause 277.
Clause 279 provides that the OT is not personally liable for the matters
specified in paragraphs 279(1)(a) and (b) unless the court is satisfied that the
OT is guilty of negligence in respect of taking custody and control of the
property. Paragraphs 279(1)(a) and (b) prescribe (a) any loss or damage
sustained by a person claiming an entitlement to all or part of the controlled
property, arising from the OT taking custody and control of the property, and
(b) the cost of proceedings taken to establish an entitlement to the
property.
Subclause 279(2) provides that the OT is not personally liable
for any of the matters prescribed by paragraphs 279(2)(a), (b) or
(c).
Clause 280 Indemnification of Official
Trustee
Subclause 280(1) compels the Commonwealth to indemnify the OT
against any personal liability incurred through the exercise of its powers and
duties under the Act. This indemnity enables the OT to carry out its functions
without the threat of personal liability.
Subclause 280(2) provides that
the Commonwealth has the same right of reimbursement that the OT would have if
the OT made a payment under the indemnity. The same right of reimbursement is
extended by subclause 280(3) to reimbursements given under another indemnity
provided to the OT.
The indemnity provided to the OT by the Commonwealth
does not affect any other right the OT has to be indemnified in respect of
personal liability, or any other indemnity provided to the OT for such personal
liability: subclause 280(4)
This Division establishes a new scheme for the provision of legal
assistance to persons whose assets are restrained under the Act. This
assistance is available to a suspect who is defending a criminal charge; it is
also available to a person who is contesting nominated forfeiture proceedings
where that person’s assets were restrained on the basis that he or she (or
if a third party, the suspect) was reasonably suspected of having committed a
serious offence (‘civil-forfeiture’ proceedings).
There are two parts to the scheme: ‘legal aid legal
assistance’ and ‘court ordered legal assistance’.
‘Legal aid legal assistance’ will be provided by the legal
aid commission of the State or Territory in which the person’s assets have
been restrained, or an application for a forfeiture order, PPO or LPO has been
made. The provision of that legal assistance will be in accordance with the
proceeds aid agreement entered into between the Commonwealth and the
particular jurisdiction.
The Commonwealth anticipates that the provision
of legal assistance through the legal aid commissions will greatly reduce the
amount of restrained assets dispersed for legal expenses.
In
jurisdictions where no proceeds aid agreement exists, and therefore legal aid
assistance is not available, the person will be able to seek payment of his or
her legal costs from the restrained assets in accordance with the procedures set
out in clauses 281-284.
To provide legal assistance, the court must be
satisfied that the legal assistance is not being granted out of property which
is either the proceeds or instrument of an offence.
Court ordered
legal assistance
Subclause 281(1) provides that where the requirements set out in clause
284 are met, a court may make an order allowing a suspect access to his or her
restrained assets to pay for specified legal costs.
Subclause 281(2)
provides that if the requirements set out in clause 284 are met, a person other
than the suspect may also be granted access to his or her restrained assets by
the court, for payment of specified legal costs.
The court is not able
to grant a suspect or third party access to his or her restrained assets for all
legal costs. Subclause 281(3) mandates that the court must specify which legal
costs are allowed in the order.
Subclause 281(4) enables the DPP to
appear in proceedings to establish whether the requirements of clause 284 are
met by questioning the suspect or other person.
Clause 282 limits the legal costs of a suspect that may be met from the
restrained assets. The suspect may seek payment of costs incurred defending a
criminal charge; this assistance is not limited to defending a Commonwealth
charge. A suspect whose property is sought to be restrained or confiscated on
the basis that he or she was reasonably suspected of having committed a serious
offence may also seek assistance for contesting nominated forfeiture proceedings
(‘civil-forfeiture’ proceedings).
If the suspect is contesting ‘civil-forfeiture’
proceedings, the legal costs that may be met from the restrained assets are
those incurred in proceedings contesting the making of a restraining order,
forfeiture order, PPO, LPO or examination order. The suspect may also seek
payment of his or her legal costs for representation at the hearing of an
application to exclude some or all of his or her property from a restraining
order, forfeiture order, PPO or LPO. If the court makes an order allowing the
suspect to be examined, the suspect can seek the costs of legal representation
at the examination to be met from the restrained assets.
This clause provides a person who is not the suspect with access to
restrained assets to pay for legal costs incurred in contesting nominated
forfeiture proceedings where the person’s assets are sought to be
restrained or confiscated on the basis that the suspect was reasonably suspected
of having committed a serious offence (‘civil-forfeiture’
proceedings).
The person may be granted access to restrained assets to
contest the making of a restraining order, forfeiture order, PPO, LPO or
examination order. The person may also seek access for representation at a
hearing to exclude some or all of his or her property from a restraining order,
forfeiture order, PPO or LPO; if the person is to be examined, he or she may
seek the legal costs of representation at that examination.
Clause 284 directs that the court may only make an order allowing a
person’s legal costs to be met from restrained assets if the requirements
in clause 284 are met. Subclauses 284(a)-(c) set out the obligations which must
be met by the person prior to the application being heard by the court. The
remaining provisions cover matters of which the court must be satisfied or have
done.
Paragraph 284(1)(a) requires the person whose assets are
restrained to apply to the court for access to those restrained assets for legal
assistance. Through the operation of this subclause the application may not be
brought by any other person.
Paragraph 284(1)(b) requires that person to
notify the DPP in writing of the application, and the grounds on which the
application is being made.
Paragraph 284(1)(c) requires the person who
is applying for access to the restrained assets to disclose all of his or her
entitlements and liabilities in the property in a statement on oath, and to file
that with the court. This will enable the court to gain a clear picture of the
person’s property.
Paragraph 284(1)(d) requires the court to assess
whether or not the person can meet his or her legal costs from property apart
from the restrained assets. The court may only consider property which is not
restrained under the Act or a corresponding law or foreign restraining order, or
which has been released from the restraining order pursuant to clause 24 to meet
debts or expenses (which are not legal costs).
If a person can meet the
costs from other sources, then he or she would not be granted access to the
restrained assets. If the court finds that the person cannot meet the legal
costs, then the court may order access to the restrained assets to pay for those
costs.
Paragraph 284(1)(e) requires the court to be satisfied that the
person has brought all of his or property into the jurisdiction of the court.
This enables the court to taken into account all of the person’s property
when assessing whether or not the person should be granted access to the
restrained assets to pay legal costs..
Paragraph 284(1)(f) requires the
court to determine whether or not the particular restrained property to which
the person is seeking access is either an instrument or proceeds of an offence.
If the person is seeking access to all of the restrained property, the court
must make a determination in relation to all of the property.
The court
may not make an order for access to any property that is determines is an
instrument or proceeds of an offence.
Paragraph 284(1)(g) prohibits the
court from ordering access to the restrained assets if there is a proceeds
aid agreement (see subclause 284(2)) which covers the kind of proceedings in
respect of which legal costs are sought. As the proceeds aid agreement must
cover the particular proceedings for which the person is seeking legal
assistance, a person will be able to seek assistance from the court if there is
only a partial agreement in place.
Paragraph 284(1)(h) operates to
ensure that the OT has been ordered by the court to take custody and control
over the relevant restrained assets. So that the restrained assets are not
abused through excessive legal costs, the OT is able to seek taxation of legal
costs which the court orders to be paid from the restrained assets. Until a
taxation order is settled, the OT may not release the assets for payment of the
costs unless so ordered by the court.
Subclause 284(2) defines
proceeds aid agreement. A proceeds aid agreement is an agreement
between the Commonwealth and a State or the ACT or NT for the provision of legal
assistance to a suspect or other person by a legal aid commission. The
agreement only relates to legal assistance for a person whose assets are
restrained under the Act, and who is contesting ‘civil-forfeiture’
proceedings under the Act, or defending a criminal charge. Legal assistance is
not available under a proceeds aid agreement for a person contesting
conviction-based forfeiture proceedings.
For a person to seek
assistance from a legal aid commission in accordance with a proceeds aid
agreement, there must be a current proceeds aid agreement between the
Commonwealth and the State or the ACT or NT in which the application for the
restraining order, forfeiture order, pecuniary penalty order, literary proceeds
order or examination is made.
A proceeds aid agreement must specify that
it is a proceeds aid agreement made for the purposes of the Act.
This clause enables the Commonwealth to regulate the maximum legal costs that
may be paid from restrained assets. This provision applies only to legal costs
which are ordered by the court to be paid from the restrained
assets.
Where there are maximum costs specified in the regulations,
subclause 285(2) prohibits the OT from making payments which would exceed the
stipulated amount of costs.
‘Legal aid legal
assistance’
Where a LAC has provided legal assistance to a suspect pursuant to a
proceeds aid agreement, clause 286 provides for reimbursement from the
restrained assets of the suspect to the LAC.
Those costs are paid to the
LAC by the OT, who has custody and control of the property. The costs that may
be paid from the restrained assets are limited to the types of proceedings set
out in clause 282, and any other legal costs for the provision of legal
assistance by the LAC pursuant to a proceeds aid agreement.
‘Costs’ for the purposes of payments that may be made to a
LAC have not been defined in the Act; they will be defined in the proceeds aid
agreements between the Commonwealth and the States and the ACT or NT.
Where a LAC has provided legal assistance to a person who is not a
suspect pursuant to a proceeds aid agreement, clause 286 provides for payment
from the restrained assets of that person to the LAC.
Those costs are
paid to the LAC by the OT, who has custody and control of the property. The
costs that may be paid from the restrained assets are limited to the types of
proceedings set out in clause 283 and any other legal costs for the provision of
legal assistance by the LAC pursuant to a proceeds aid agreement.
Subclause 288 (1) provides that where a LAC provides legal assistance to
a person for proceedings set out in subclause 282(b) or (c) or clause 283
(‘civil-forfeiture’ proceedings), the LAC can recover from
the Confiscated Assets Account the amount of legal costs which exceeds the value
of the restrained assets.
Payment by the OT to the LAC must be made to
the LAC if paragraphs 288(1)(a)-(c) are satisfied. The amount the OT must pay
to the LAC is the amount of the excess.
Paragraph 288(1)(a) requires the
OT to certify that the LAC’s costs exceed the value of the person’s
restrained property.
Paragraph 288(1)(b) requires the Attorney-General
or delegate to certify the legal costs.
Paragraph 288(1) (c) requires the
Minister to consent to the payment from the Confiscated Assets Account. [All
payments from the Confiscated Assets Account must be approved by the
Minister].
Subclause 288(2) enables a LAC to be paid from the Confiscated
Assets Account where the disposal by the OT of the restrained assets would take
considerable time. The LAC may be paid for legal costs incurred in proceedings
mention in clause 282 or clause 283 (defending a criminal charge or contesting
‘civil-forfeiture’ proceedings). This acts like an advance on
the restrained assets, and the amount paid to the LAC cannot exceed the assessed
value of the restrained assets. The assets must be valued before payment can be
made under this clause.
Payment from the CAA must be approved by the
Minister. In addition, the Attorney-General or delegate must certify the costs
of the LAC.
Clause 289 Taxing costs
Subclause 289(1) provides for a court to order the taxation of legal
costs which are to be met from the restrained assets. This provision applies
only to legal costs which are ordered by the court to be paid from the
restrained assets.
Paragraph 289(1)(a) stipulates that for the court to
make that order, the restrained assets must have been placed in the custody and
control of the OT by an order under clause 36.
Paragraph 289(1)(b)
requires that the court must also have made an order (under clause 281 or 282)
allowing a person to have his or her legal costs met from the restrained
assets.
An application for the taxation of legal costs may only be
brought by the OT, and the OT must give written notice of the application to the
person whom the court made the order for legal costs in relation to: paragraph
289(1)(c).
Subclause 289(2) provides that where the OT has made an
application for an order under subclause 289(1) in respect of specified legal
costs, the OT does not need to meet those legal costs unless ordered by the
court, or one of the events in paragraphs 289(2)(a) or (b) occurs.
If a
taxation order is made pursuant to subclause 289(1), the legal costs may be paid
once that order is complied with: paragraph 289(2)(a).
If no taxation
order is made, but the application under subclause 289(1) (and any appeals
arising from that application) are finalised or otherwise disposed of, the legal
costs may be met: paragraph 289(2)(b).
This clause enables the DPP or OT to pass on to a LAC information
obtained under the Act which would assist the LAC in determining an application
for legal assistance made by a person pursuant to a proceeds aid
agreement.
This ensures that the LAC is not hindered in processing the
application by lack of information, and has a clear picture of the
person’s financial situation.
Subclause 291(1) enables a person (whether or not he or she is a suspect) to
apply to the Attorney-General for legal assistance. A person may only apply
under this clause if he or she is contesting forfeiture proceedings where the
application for the relevant order is made on the ground that the person was
convicted, charged or about to be charged with an indictable offence (that is,
‘conviction-based’ forfeiture proceedings).
The person
may apply for assistance to contest the making of a restraining order,
forfeiture order, PPO or LPO. The person may also seek access for
representation at an application to exclude some or all of his or her property
from a restraining order, forfeiture order, PPO or LPO.
Subclause 291(2)
provides that a person may also apply to the Attorney-General for legal
assistance to prevent an examination order being made or for representation at
an examination. The person may seek that assistance if the examination relates
to a restraining order which was made on the ground that the person was
convicted, charged or about to be charged with an indictable offence (ie
‘conviction-based’ forfeiture proceedings). The person may
also seek assistance under this provision, if the examination is conducted or to
be conducted under clause 175 of the Act, in relation to an application by the
DPP for the confirmation of a forfeiture order.
Pursuant to subclause 291(3), the Attorney-General may authorise the
Commonwealth to provided legal or financial assistance for forfeiture
proceedings to a person who applies under subclause 291(1).
The
Attorney-General may authorise the assistance if refusal of the application
would involve hardship to the person and it is reasonable, in all the
circumstances, to grant the application.
If the Attorney-General does
authorise the assistance, subclause 291 (4) enables the assistance to be made
subject to conditions.
Clause 292 Establishment of Account
Subclause 292(1)
formally establishes the Confiscated Assets Account. Subclause 292(2) provides
that the Account is a Special Account for the purposes of the Financial
Management and Accountability Act 1997.
Subclause 293(1) provides that the following money is credited to the
Account:
• proceeds of confiscated assets (paragraph 293(1)(a)).
This expression is defined by a new definition inserted in the Dictionary. It
identifies the sources of funds, recovered under the principal Act, the
Customs Act 1901 and the Crimes Act 1914, which are payable to the
Account;
• money paid to the Commonwealth by a foreign country
under a treaty or arrangement providing for mutual assistance in criminal
matters (paragraph 293(1)(b));
• money paid to the Commonwealth
following the successful enforcement of the foreign pecuniary penalty order in
Australia under the provisions of the Mutual Assistance Act (paragraph
293(1)(c));
• money deriving from the successful enforcement of an
interstate forfeiture order registered in a Territory (except where covered by a
direction under subclauses 66(2)or 95(2): (paragraph 293(1)(d)). Under an
agreement between the Commonwealth, State and Territory, the proceeds resulting
from the forfeiture of property are to be retained by the jurisdiction in which
they forfeiture order was made. Thus, if an interstate forfeiture order is
registered under the Act for enforcement against property located in a Territory
(other than the ACT or NT), the resulting proceeds are payable to the
Commonwealth and will be payable to the Account;
• money received
from a State or the ACT or NT Government pursuant to the equitable sharing
program (paragraph 293(1)(e)). This refers to money recovered under State or
ACT or NT proceeds legislation but shared with the Commonwealth because of the
contribution made by a Commonwealth agency to the investigation or prosecution
of the criminal matter or to the related confiscation proceedings;
and
• money that is paid to the Commonwealth by a foreign country
in recognition of assistance provided by Commonwealth law enforcement agencies
(paragraph 293(1)(f)). This is in addition to money paid to the Commonwealth by
a foreign country under a treaty or arrangement providing for mutual assistance
in criminal matters.
Subclause 293(2) provides that all amounts paid into the Account which are
declared by the regulations to be distributable funds or suspended funds are to
retain that identity while they remain within the Account. The phrase
“suspended funds” is defined at subclause 294(2) and
“distributable funds” is defined in subclause 295(7).
All
proceeds recovered under the Act are paid into the Account. That is intended to
include any proceeds recovered by the DPP as a result of a negotiated settlement
of any forfeiture proceedings such as any recovery included in a consent order;
and any recovery of proceeds by an agency by means of a negotiated settlement.
Subclause 293(3) identifies what monies are proceeds of confiscated
assets.
Subclause 293(4) sets out the requirements for an arrangement
to be an equitable sharing program.
Subclause 294(1) sets out the purposes of the Account in respect of
suspended funds. The money is to be used for:
• making payments under the equitable sharing program (paragraph 294(1)(a));
• making payments overseas pursuant to a foreign forfeiture order, foreign pecuniary penalty order or an order under section 45 of the International War Crimes Tribunal Act 1995 that was enforced in Australia and in relation to which Australia’s Mutual Assistance arrangement provides for the repatriation of an amount recovered (paragraph 294(1)(b));
• making payments to a State, ACT or NT in relation to an interstate order which was registered under the Mutual Assistance Act and assets were repatriated from overseas following enforcement in a foreign country under the Mutual Assistance arrangement (paragraph 294(1)(c));
• payment of the OT’s costs under clause 277(1)(a) which the OT has been unable to recover (paragraph 294(d));
• payment of the annual management fee for the Account. The regulations will make provision for the deduction of a management fee which will cover the administrative costs associated with the management of the Account (paragraph 294(1)(e);
• payment of amounts that are ordered to be paid by the Commonwealth in compensation for third party interests under either paragraphs 69(2)(d) or 84(1)(b) or sub-paragraph 97(1)(d)(ii) of the Act (paragraph 294(1)(f)); and
• making payments to a relevant LAC in accordance with Part 4-2 (paragraph 294(1)(g)).
Subclause 294(2) defines suspended funds for the purposes of the Confiscated
Assets Account.
Clause 295 Determinations by Official Trustee about
suspended and distributable funds
Clause 295 is based on section 34E
of the Proceeds of Crime Act 1987. It provides that the Official Trustee
shall periodically, and at least once every six months, determine whether the
amount of suspended funds in the Account is likely to be insufficient for the
requirements of subclause 294(1).
Under subclauses 295(2) and (3), the
OT will be able to identify further funds as ‘suspended funds’ in
the case of a deficiency (subclause (2)) or to declare that surplus
‘suspended funds’ are to be identified as ‘distributable
funds’.
Where the amount of suspended funds is likely to exceed
the amount required to meet the payments for the purposes of subclause 294(1),
subclauses 295(4) and (5) require the OT to identify an amount as distributable
funds. The amount specified cannot be more than the amount of the likely
excess.
Sub clause 295(7) defines distributable funds for the purposes of
the Confiscated Assets Account.
PART 4-4 –
CHARGES OVER RESTRAINED PROEPRTY FOR PAYMENT OF CERTAIN
AMOUNTS
This clause ensures that the costs of the OT and legal aid commission are
met prior to the restrained assets being released, either pursuant to the
restraining order being revoked by the court or the cessation of the order in
accordance with clause 43.
Clause 296 does this by creating a charge on
the property for the payment of the OT’s expenses, the LAC or
both.
This clause does not apply to the OT if the restraining order
ceases to be in force and the property is returned to its owner.
Paragraph 297(a) provides that the charge ceases to have effect if the
amount owing to the OT, LAC or both is paid.
If the person becomes
bankrupt, the charge ceases to have effect by force of paragraph 297(b).
Paragraph 297(c) provides that the charge also ceases to have effect if
the property is sold or disposed of with the consent of the OT.
This clause establishes the priority of a charge which is created in
favour of the OT or a LAC under clause 296.
Paragraph 298(a) provides
that a charge made in favour of the OT or a LAC is subject to all earlier
encumbrances that would otherwise have priority. For example, if the restrained
property is a house, there may be an earlier mortgage which upon disposal of the
property would be paid out prior to the OT or LAC.
Paragraph 298(b)
provides that the OT charge has priority over other encumbrances. This includes
a charge in favour of a LAC.
Paragraph 298(c) provides that a charge in
favour of a LAC has priority over all other encumbrances.
Paragraph
298(d) enables a charge to continue to have effect, despite any change in
ownership of the property; however, this is subject to the matters set out in
clause 297.
This Part enables restraining orders, and forfeiture orders made under
prescribed legislation of a State, the Northern Territory or the Australian
Capital Territory to be registered and enforced in the external Territories.
Clause 299 deals with the registration in a Territory of a restraining
order made interstate which is expressed to apply to property in that
Territory.
Subclause 299(1) permits the registration in the Supreme Court
of a Territory of a copy of a restraining order, sealed by the court, which was
granted interstate, and is expressed to apply to specified property, or all of
the property of the specified person, or all property (other than specified
property) of a specified person, which is located in the
Territory.
Subclause 299(2) permits a copy of any amendments made to the
IRO, whether before or after the restraining order has been registered in that
Territory, to be registered in the same was as the original order. Such
amendments do not take effect until they are registered.
Subclause 299(3)
permits the registration of an IRO to be refused, to the extent that the IRO
would not be able to be enforced in the Territory once
registered.
Subclause 299(4) provides that the registration must be
effected in accordance with the Rules of the Supreme Court of the
Territory.
Subclause 300(1) provides that once an IRO is registered in the Supreme
Court of a Territory, that IRO may be enforced in the Territory as if it were a
restraining order made at the time it was registered.
Subclause 300(2)
provides that the Act, except for certain specified clauses, applies to an IRO
which has been registered in the Territory in the same way as it would apply to
a restraining order made under the Act.
Clause 301 provides that an IRO which has been registered in a Territory
under the Act ceases to be in force in the Territory if it ceases to be in force
in the State in which it was made, or registration of the order is cancelled
under clause 302 of the Act.
This clause provides for the cancellation of registration of an IRO in a
Territory.
Under subclause 302(1), the Supreme Court of the Territory may
cancel the registration of an IRO if the registration was improperly obtained.
The court may also cancel the registration if the particulars of any amendments
made the IRO or any ancillary orders or directions made by a court in relation
to the IRO were not communicated to the Supreme Court in accordance with the
rules of the Supreme Court.
Pursuant to subclause 302(2), the Supreme
Court is also able to cancel the registration of an IRO to the extent that the
IRO in not enforceable in the Territory.
Clause 303 Charge on
property subject to registered interstate restraining order
Upon
occurrence of the events specified in paragraphs 303(1)(a) to (d), subclause
303(1) creates a charge over the property which is the subject of an IRO to
secure the payment of an interstate PPO.
Paragraphs 303(1)(a) to (d)
require an IRO and interstate PPO to have been made against a person, and each
of those orders to have been registered in the Supreme Court of a Territory.
The IRO must be made in relation to the person’s conviction for an
interstate indictable offence, or the charging or proposed charging of the
person with an interstate indictable offence, and the interstate PPO must be
made in relation to the person’s conviction for an interstate indictable
offence.
The charge is created over the property upon the registration of
the IRO or the interstate PPO, whichever occurs last.
Subclause 303(2)
provides for the cessation of the charge.
Paragraph 303(2)(a) provides
that where the conviction which the PPO was made in relation to is quashed, the
charge ceases to have effect.
The charge also ceases where the person
successfully appeals against the PPO and the order is discharged by the court :
paragraph 303(2)(b).
Pursuant to paragraphs 303(2)(c) and (d), if the
person pays out the PPO in full, or alternatively, becomes a bankrupt, the
charge ceases to have effect.
Pursuant to paragraph 303(2)(e), certain
sale or disposal of property also causes the cessation of the charge. The
property may be disposed of in three ways. They are, by order of the court in
the jurisdiction in which the PPO was made; by the owner of the property with
the consent of the court; or (where appropriate) by the owner of the property
with the consent of the person directed by the IRO to take control of the
property.
Sale of the property to a purchaser for sufficient
consideration, where the person has no notice of the charge and purchases in
good faith will also cause the charge to cease: paragraph
303(2)(f).
Subclause 303(3) provides that a that a charge made under this
clause is subject to all earlier encumbrances that would otherwise have
priority.
By operation of paragraph 303(3)(b), the charge has priority
over all other encumbrances.
Paragraph 303(3)(c) enables a charge to
continue to have effect, despite any change in ownership of the property;
however, this is subject to the matters set out in subclause 303(2).
Subclause 303(4) provides that where the Commonwealth, a State or
Territory have a system of registration for certain types of property the OT or
the DPP may apply for a charge created by clause 303 to be registered with the
relevant authority. Once registration is effected, any person who purchases or
otherwise acquires an interest in the property is taken to have notice of the
charge.
Clause 304 Powers of Official Trustee in relation to
interstate restraining orders
This clause provides that when an IRO
is registered in a Territory, and the order directs a State, ACT or NT official
to take control of the restrained property, the OT may with the agreement of the
official, exercise the same powers in relation to that property as the State
official could if the property were located in that State, the ACT or
NT.
This clause enables an interstate forfeiture order (IFO) which applies to
property located in a Territory to be registered in the Supreme Court of that
Territory.
Subclause 305(1) permits the registration in the Supreme Court
of a Territory of a sealed copy of a forfeiture order granted interstate, where
that forfeiture order applies to property in the Territory. The registration
may be effected by the person on whose application the order was made or an
appropriate officer.
Subclause 305(2) permits a copy of any amendments
made to the IFO, whether before or after the forfeiture order has been
registered in that Territory, to be registered in the same was as the original
order. Such amendments do not take effect until they are
registered.
Subclause 305(3) permits the registration of an IFO to be
refused, to the extent that the IFO would not be able to be enforced in the
Territory once registered.
Subclause 305(4) provides that the
registration must be effected in accordance with the rules of the Supreme Court
of the Territory.
This clause provides for the enforcement of an IFO which has been
registered in the Territory. The IFO may be enforced in the Territory from the
time of registration as if it were a forfeiture order made under the
Act
Subclause 306(2) applies the Act (apart from Divisions 5 and 6 or
Part 2-2 and clause 317) to an IFO registered in a Territory, as the Act applies
to a forfeiture order.
This clause provides for the cessation of the registration an IFO in a
Territory. An IFO ceases to be registered under the Act if the order ceases to
be in force in the State in which it was made, or the registration is cancelled
under clause 308 of the Act.
This clause provides for the cancellation of registration of an IFO in a
Territory.
Under subclause 308(1), the Supreme Court of the Territory may
cancel the registration of an IFO if the registration was improperly obtained;
the court may also cancel the registration if the particulars of any amendments
made the IFO or any ancillary orders or directions made by a court in relation
to the IFO were not communicated to the Supreme Court in accordance with the
rules of the Supreme Court.
Pursuant to subclause 308(2), the Supreme
Court is also able to cancel the registration of an IFO to the extent that the
IFO in not enforceable in the Territory.
Clause 309 Interim registration of faxed copies
This
clause provides for the interim registration of facsimile copies of interstate
restraining orders and interstate forfeiture orders and amendments to such
orders.
Subclause 309(1) deems a facsimile copy of a sealed copy of an
IRO, IFO or amendment to either of those orders which has been certified in
accordance with the rules of the Supreme Court to be the same as a sealed copy
for the purposes of the Act.
Under subclause 309(2) a sealed copy of the
relevant order (that is not a facsimile copy) must be registered with the court
within five days of the registration of the facsimile copy; if this does not
occur, the registration effected by the facsimile copy ceases to have
effect.
Where a sealed copy (that is not a facsimile copy) is registered
with the court within the five day period, the registration takes effect as of
the date that the facsimile copy was registered: subclause 309(3).
This provision vests the courts of the State and Territories with
jurisdiction in relation to matters arising under the Act. In relation to a
court of a Territory, jurisdiction is only vested as far as the Constitution
permits.
Subject to the operation of clause 50, the jurisdiction vested
in the State and Territory courts by this clause is not limited by any limits
which any other jurisdiction of the court may be limited by. For example, under
this clause an intermediate court would be able to entertain an application for
forfeiture where the amount sought to be forfeited could exceed that
court’s monetary jurisdiction.
Clause 311 Proceedings are
civil, not criminal
This clause makes it clear that all proceedings
under this Act are civil proceedings. Except for the offence provisions
contained in the Act, the rules of construction and evidence applicable in civil
cases apply to the interpretation of, and proceedings under, the Act.
This clause makes it clear that subject to clauses 49, 113 and 149, all
questions of fact which are to be determined by a court pursuant to an
application under this Act are to be decided to the civil standard (the balance
of probabilities).
Clause 313 Proof of certain
matters
Clause 313 facilitates the proof of certain matters. A
certificate under section 180 of the Evidence Act 1995 relating to convictions,
acquittals, court orders or other judicial proceedings is admissible in civil
proceedings under the Act. In proceedings for an application under the Act the
transcript of the examination is evidence of the answers given by a person in
the course of the examination.
Clause 314 Stay of
proceedings
This clause provides that proceedings under the Act may
not be stayed on the grounds that criminal proceedings have been instituted or
commenced (whether under this Act or not).
Clause 315 Effect of the
confiscation scheme on sentencing
Clause 315 establishes what matters
under the Act a sentencing court may or must take into account. The provisions
ensure that a person’s sentence is not mitigated by the fact that the
person forfeited the proceeds or benefits of the offence for which he or she is
being sentenced.
The court may take into account any cooperation the
person has provided in relation to an action under the Act: paragraph 315(a).
Where property is forfeited in relation to the offence for which the
court is sentencing the person, the court must not take into account forfeited
property which is the proceeds or instrument of the offence; however, the court
must take into account any other property forfeited: paragraphs 315(b) and (c).
The court may not take into account the effect of a PPO or LPO that
relates to the offence: paragraph 315(d).
Clause 316 Deferral of
sentencing pending determination of confiscation order
Where an
application for a confiscation order is made to the court on the basis of the
person’s conviction for that offence, clause 316 enables a court which has
convicted a person of an offence to defer the sentencing of the person for that
offence until it has determined the application for the confiscation
order.
Subclause 317(1) enables a person against whom a confiscation order is
made, or whose interest in property is either the subject of a forfeiture order
or has been declared available to satisfy a PPO or LPO, to bring an appeal
against those orders (referred to as a targeted order) in the
manner set out in the rest of clause 317.
Subclause 317(2) provides
that, where the targeted order in subclause (1) was made in relation to a
conviction of an offence, the person may appeal against the order in the same
manner as if the targeted order were, or were part of, a sentence imposed on the
person in respect of the offence.
Subclause 317(3) provides that, in
any other case (that is, where the targeted order was not made in relation to a
conviction), the person may appeal against the targeted order as if the person
had been convicted of the offence to which the primary order relates and that
order were, or were part of, a sentence imposed on the person in respect of the
offence.
Subclause 317(4) sets out the appeal rights of a person in
respect of a primary order relating to a foreign indictable offence. Under this
subclause, the person may appeal against the targeted order in the same manner
as if the person had been convicted of the offence in the State or Territory in
which the targeted order was made and that order were, or were part of, a
sentence imposed on the person in respect of the offence.
Subclause
317(5) provides that the DPP has the same right of appeal against a targeted
order as the person referred to in subclause (1) and has a right of appeal
against a refusal by a court to make a targeted order in the same manner as if
that order were made and the DPP were appealing against that order.
Subclauses 317(6) and (7) provide that on an appeal against a targeted
order, the order may be confirmed, discharged or repealed, and that the clause
does not affect any other right of appeal.
Subclause 318(1) sets out the circumstances in which the court may order
the Commonwealth to pay all costs incurred by a person involved in certain
proceedings in relation to forfeiture or restraining orders. A number of
pre-conditions must be satisfied before the order can be made. First, under
paragraph 318(1)(a), the person must bring, or appear at, proceedings under the
Act in order to prevent a forfeiture order or restraining order from being made
against property of the person, or to have property excluded from such orders.
Secondly, paragraphs 318(1)(b) and (c) provide that the person must be
successful in the proceedings and the court must be satisfied that the person is
not involved in the commission of the offence relating to the
orders.
Subclause 318(2) provides that the costs referred to in subclause
(1) are not limited to costs normally recoverable by the successful party in
civil proceedings.
Pursuant to subclause 319(1), a power conferred by this Act on a State or
Territory judge or on a magistrate that is neither judicial nor incidental to a
judicial function or power, is a power conferred on that person in a personal
capacity and not as a court or a member of a court.
Subclause 319(2)
provides that the State or Territory judge, or the magistrate, is not compelled
to accept the power conferred.
Subclause 319(3) provides that a State
or Territory judge, or the magistrate exercising a conferred power has the same
protection or immunity as if he or she were exercising that power as, or as a
member of, the court of which the judge or magistrate is a member.
Clause 320 Effect of a person’s death
The effect of
this clause is that proceedings under the Act may be instituted and continued
against a person who has died; the rights of a third party may also be enforced
after his or her death.
It is not anticipated that proceedings for
conviction-based forfeiture could be instituted under this provision, however,
civil-forfeiture proceedings could be. Subclause 320(3) gives the court
discretion to hear and determine applications for orders under the Act in
respect of an interest in property or activities of a person who has
died.
This clause makes it clear that nothing in this Act limits or restricts
the operation of any other Commonwealth or non-governing Territory law providing
for the forfeiture of property or the imposition of pecuniary penalties. Nor
does the Act limit or restrict the remedies available to the Commonwealth, apart
from this Act, for the enforcement of its rights and the protection of its
interests.
Clause 322 Review of operation of Act
This
clause provides that the Minister must cause an independent review of the Act to
be undertaken as soon as practicable after the Act has been in operation for
three years. That review report must be in writing, provided to the Minister
and then tabled in both houses of Parliament.
If a Parliamentary
committee has reviewed the Act prior to that time, or started such a review, the
clause does not apply.
Clause 323 contains the general regulation making power. It provides
that the Governor-General may make regulations prescribing matters that are
required or permitted to be prescribed; or necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
CHAPTER 6 –
INTERPRETING THIS ACT
PART 6-1 –
MEANING OF SOME IMPORTANT CONCEPTS
Clause 324 Meaning of proceeds and instrument
This clause defines what constitutes the proceeds or an instrument
of an offence.
Subclause 324(1) provides that property is the proceeds
of an offence whether it is either wholly or partly derived or realised from the
commission of an offence, and whether it is either directly or indirectly
derived or realised from the commission of that offence.
Subclause 324(1)
also provides that the property so derived does not have to be situated in
Australia to be the proceeds of an offence for the purposes of the Act.
Paragraph 37(1)(g) empowers a court making a restraining order to make an
ancillary order requiring the person to bring restrained property within the
jurisdiction. Further, where applicable, the Commonwealth is able, through
operation of the Mutual Assistance in Criminal Matters Act 1987,
to secure the proceeds of an offence which are located overseas. The extended
reach of that Act provides that suspects cannot evade forfeiture by transferring
their proceeds overseas.
Subclause 324(2) provides that property
is an instrument of an offence if it was used, or intended to be used, in
or in connection with the commission of an offence. This is distinct from
proceeds of an offence, which flow from the commission of an offence.
For example, if a small plane is used to import narcotics into Australia, that
plane becomes an instrument of that offence, and the money provided to
the trafficker upon reaching Australia is the proceeds of that offence.
Property may be an instrument of an offence even though it was lawfully
acquired.
As with proceeds, property does not have to be located
within Australia to be an instrument of an offence under the
Act.
Subclause 324(3) provides that property may be the proceeds
or instrument of an offence even though no person has been convicted of
the offence. For example, in civil forfeiture proceedings based on conduct
constituting an indictable offence, it will be possible for the court to find
that the property was the proceeds of a Commonwealth offence without the
perpetrator of that offence being identified.
Clause 325 When
property becomes, remains and ceases to be proceeds or an
instrument
This clause establishes that money or other property which
is ‘proceeds of an offence’ or an ‘instrument of an
offence’ does not lose its nature as such merely because it is exchanged
for another item or is otherwise dealt with (for example by the sale of property
which is proceeds or an instrument, or by placing cash which is proceeds into a
bank account, or using cash which is proceeds to purchase property). This
prevents a person from transforming property which is proceeds or an
instrument into ‘clean’ property just by changing its
nature.
Subclause 325(1) deals with proceeds by providing that property
becomes the proceeds of an offence if it is wholly or partly derived or
realised from, or acquired with, proceeds of the offence. For example, if a
house is acquired for $300,000, and $100,000 of the money used is proceeds of an
offence, the entire property becomes the proceeds of the offence and is liable
to forfeiture.
Subclause 325(2) deals with instruments in a
similar manner.
Subclause 325(3) establishes that when the
proceeds or an instrument of an offence is used to acquire other
property not only does the original property retain its nature as proceeds or an
instrument, the property acquired with the proceeds takes on that nature, and
itself becomes the proceeds or an instrument of an offence.
Subclause
325(4) protects the rights of innocent third parties who acquire the proceeds or
instrument of an offence in certain circumstances.
An example of how
subclauses 325(1)-(4) would work is set out below:
• If A defrauds
the Commonwealth of $200,000, that money is the proceeds of an offence.
• If A then purchases a house entirely with those proceeds, the
house becomes the proceeds of an offence, and the money continues to be the
proceeds of an offence.
• However, if the seller of the house has
acquired the money for sufficient consideration (that is, the house was sold for
its value), and the seller does not know, and there is nothing that would cause
him or her to suspect that, at the time of sale, that the money was the proceeds
of an offence, that money then ceases to be the proceeds of an
offence.
• A person who receives the proceeds of an offence as a
gift (and therefore does not supply any consideration for the property) will be
liable to forfeit that property, whether or not they are aware of the
property’s origin.
A legal representative defending a person who
is charged with a criminal offence or contesting proceedings under the Act is
specifically protected by paragraph 325(4)(c). This clause recognises that
legal representatives are in a unique position, in that through the very nature
of their work they may often suspect that their client is paying with the
proceeds of an offence, but still have a duty to represent that person. If
legal representatives were under threat of their earnings being confiscated
every time they represented a client facing forfeiture action, there is a high
chance that such people would not be afforded legal representation. Other
professional groups do not need a specific exemption, and would be covered by
paragraph 325(4)(a).
Paragraphs 325(4)(d) and (e) provide that property
which is an instrument or proceeds of an offence ceases to have that character
if it is the subject of a forfeiture order under the Act, or an interstate
restraining order or an interstate forfeiture, and the relevant order has been
satisfied.
Paragraph 325(4)(f) allows property sold or disposed of under
the Act to cease to be the proceeds or an instrument of crime. For example,
where the Official Trustee is of the opinion that the restrained property is
likely to lose value unless sold, that property may be sold under clause 266.
The proceeds of that sale would then constitute the proceeds or instrument of
the offence under clause 269, but the actual property would no longer have that
nature.
Subclause 325(5) will prevent a person from engaging in a sham transaction
with the proceeds or an instrument of an offence to avoid forfeiture action. If
a person did re-acquire such property in lawful circumstances, it would be open
for them to prove lawful ownership. This clause is based on subsection 9(6) of
the NSW Criminal Assets Recovery Act 1990.
DIVISION 2 –
CONVICTED AND RELATED CONCEPTS
Clause 326 Meaning of
convicted of an offence
Clause 326 is based on subsections 5(1)(3) and (4) of the Proceeds of Crime Act 1987.
Subclause 326(1) extends the meaning of ‘conviction’ by
establishing four situations in which a person is taken to have been convicted
of an offence for the purposes of the Act. Paragraphs 326(1)(a) and (b)
establish that a person is taken to be convicted of an offence if the person was
actually convicted of an offence, or was found guilty of the offence but no
conviction was recorded.
If the person has been found guilty by a court
of one offence, and at sentencing another offence was taken into account, but no
formal finding of guilt in relation to that offence was made, the person is
deemed to have been convicted of that second offence: paragraph 326(1)(c).
Paragraph 326(1)(d) extends the definition of ‘convicted’ to a
person who has absconded in connection with the offence. ‘Abscond’
has a particular definition in the Act, set out in clause 328.
Subclause 326(2) establishes the jurisdiction in which the person is deemed
to have been convicted of an offence under each of the paragraphs of subclause
326(1). If the person was convicted pursuant to paragraphs 326(1)(a)-(c), the
person is deemed to have been convicted in the State or Territory in which the
relevant court finding was made. Where the person was convicted pursuant to
paragraph 326(1)(d), the person is taken to have been convicted in the State or
Territory where the information alleging the person’s commission of the
offence was laid.
In addition, in the case of an absconder, subclause
326(3) provides that, the person is taken to have been convicted before the
Supreme Court of the relevant State or Territory, and to have committed the
offence. Thus, applications in relation to the offence are to be made to the
Supreme Court of that State or Territory.
Subclause 326(4) specifies that
clause 326 does not apply to a foreign serious offence.
This clause, which is based on subsection 5(2) of the Proceeds of
Crime Act 1987, sets out the circumstances in which each type of conviction,
defined in clause 326, will be taken to have been quashed.
If a person
is taken to have been convicted of an offence pursuant to paragraphs 326(1)(a)
or (b), that conviction is quashed if the respective conviction or finding of
guilt, is quashed or set aside by a court.
If the person was taken to
have been convicted pursuant to paragraph 326(1)(c), there are two situations
which would result in the conviction being deemed to have been
quashed:
• if the conviction of the offence for which the person was
being sentenced (when the offence of which he is deemed to have been convicted
by paragraph 326(1)(c) was taken into account) is quashed or set aside;
or
• if the decision of a sentencing court to take into account the
offence (of which the person is deemed to be convicted by paragraph 326(1)(c))
is quashed or set aside.
If the person was taken to have been convicted
of an offence because he or she absconded in relation to that offence, the
conviction is deemed to be quashed if the person is brought before a court in
respect of the offence and either is discharged in respect of the offence, or a
conviction of the person for the offence is quashed or set aside: paragraph
327(1)(d).
Subclause 327(2) specifies that clause 327 does not apply to a
foreign serious offence.
This clause, which is based on section 6 of the Proceeds of Crime Act
1987, establishes the definition of abscond for the purposes of the Act.
The concept of an absconder is relevant only in relation to conviction-based
forfeiture proceedings under the Bill. Although similar, the definition and its
application differs from that contained in section 6 of the Proceeds of Crime
Act 1987.
A person is taken to have absconded in connection with an
offence if an information has been laid alleging that the person committed the
offence, a warrant for the person’s arrest has been issued in relation to
that information, and at the end of six months from the date of issue of the
warrant either:
• the person cannot be found, or is not amenable to justice and there are no extradition proceedings on foot: paragraph 328(2)(a); or
• the person is outside Australia and extradition proceedings, which are subsequently terminated without an extradition order being made, are on foot: paragraph 328(2)(b).
The effect of paragraph 328(2)(b) is to extend the time at which a person outside Australia is taken to abscond where extradition proceedings are on foot.
Before making a forfeiture order against a person who is taken to have
absconded, the court is required by clause 49 to be satisfied that the person
has absconded and did commit the offence. Automatic forfeiture is not available
against a person who is deemed to have absconded: clause 88(4).
Clause 329 Proceeds jurisdiction
This clause establishes
the nexus between the offence and the courts which have proceeds jurisdiction.
Whether or not a court has proceeds jurisdiction is dependant upon where the
relevant offence or offences took place.
If the conduct, or part of the
conduct constituting the offence to which the order would relate occurred in a
State or Territory, the courts which have jurisdiction to deal with criminal
matters on indictment in that State or Territory have proceeds
jurisdiction.
If all of the conduct constituting the offence took place
outside Australia, the courts of any State or Territory which have jurisdiction
to deal with criminal matters on indictment have proceeds jurisdiction.
This clause expands what is meant by a person having derived
proceeds, a benefit or literary proceeds.
Proceeds, a benefit or literary proceeds may be derived by the person, or by
another person at the request or direction of the first person. The proceeds,
benefit or literary proceeds may be derived directly or
indirectly.
Clause 331 Meaning of effective control
To ensure that the operation of the Act is as effective as possible,
the Act extends its reach to property not necessarily owned by the person, but
which is under his or her effective control. This clause defines
‘effective control’ for the purposes of the Act.
Property
that is the proceeds or an instrument of crime will frequently be dealt with so
as to avoid it being traced back to its owner; this includes the transfer of all
interests in the property to another person. ‘Effective control’ is
defined in subclause 331(1) to provide that a person need not have a legal or
equitable interest in the property, or a right power or privilege in relation to
it, to have effective control of that property.
To make the effective
control provisions highly effective, subclause 331(2) deems property held on
trust for the ultimate benefit of a person to be under that person’s
effective control.
Subclause 331(3) deems property that is disposed of
to another person without sufficient consideration, within six years before or
after an application for a restraining order, forfeiture order, pecuniary
penalty or literary proceeds order, to be under the effective control of the
person who disposed of the property. Such disposal will usually be by way of
gift, often to family members or other associates, and any control exerted over
the property would be disguised. This provision enables a court to look at that
property, without needing the prosecution to show that it is under the effective
control of the suspect.
Subclause 331(4) also enables a court to look
behind the corporate veil, in order to determine whether particular property is
under the effective control of the defendant. For example, if the property is
owned (either partly of wholly) by a company, the court may look to a
shareholdings in, debentures over or directorships of that company: 331(4)(a).
The court may also look to any trust which has a relationship to the property:
331(4)(b), as well as the relationships between the various natural persons,
companies and/or trusts which have an interest in the property:
331(4)(c).
PART 6-2 –
DICTIONARY
Clause 332 Dictionary
This clause
defines a number of terms used throughout the Act, including the following.
(Note: the terms set out below are not a complete list of the
definitional terms).
Approved examiner
An approved examiner is a person who holds an office, or who is included in a
class of people specified in the regulations, or who has been appointed by the
Minister under clause 177.
Persons who may be appointed as approved
examiners could include, for example, Members of the Administrative Appeals
Tribunal of certain rank, Members of the Administrative Appeals Tribunal with at
least five years admission as a practitioner, persons who have held judicial
office and have signified their willingness to be an approved examiner, former
Magistrates who have signified their willingness to be an approved examiner, and
persons with relevant qualifications (including at least five years admission as
a practitioner) who have signified their willingness to be an approved examiner.
Australia
This term is defined to include the
external Territories. The external Territories are the Territory of Ashmore and
Cartier Islands, the Australian Antarctic Territory, Territory of Christmas
Island Act, Territory of Cocos (Keeling) Islands, Territory of Heard Island and
Macdonald Islands, and the Coral Sea Islands Territory.
Confiscated Assets Account
The Confiscated Assets
Account is the account established under clause 292 of this Bill, which replaces
the Confiscated Assets Reserve under the Proceeds of Crime Act 1987.
Confiscation order
This is defined to mean a forfeiture
order, a pecuniary penalty order and a literary proceeds order; it does not
include an automatic forfeiture order made under Part
2-3.
Corresponding law
Corresponding law is defined
to mean a law of a State, the Australian Capital Territory, the Northern
Territory or Norfolk Island that is declared by the regulations to be a law that
corresponds to this Act. Declaring a law to correspond to the Act has the
effect of allowing orders under that law to be registered and enforced in a
Territory (other than the Australian Capital Territory, the Northern Territory
or Norfolk Island).
Criminal proceeding
This is
defined to have the same meaning as in the Mutual Assistance in Criminal
Matters Act 1987. In that Act, criminal proceeding in relation to an
offence means a trial of a person for the offence or a committal proceeding in
respect of the offence.
Distributable funds
This
terms identifies those moneys paid to the Commonwealth which will be available
for distribution from the Confiscated Assets Account. Those moneys may be
prescribed by regulation or identified as distributable funds by the Official
Trustee: subclauses 293(2) and 295(4).
Equitable sharing program
This definition is based on the definition of the same phrase
that appears in section 4 of the Proceeds of Crime Act 1987.
The “equitable sharing program” is relevant to the clause 294
which provides for the payment of money out of the Confiscated Assets Account.
In particular, sub-paragraph 294(1)(a) provides for the continued operation of
the equitable sharing program.
This is defined to have the same meaning as in the Mutual Assistance
in Criminal Matters Act 1987. In that Act, ‘foreign forfeiture
order’ is defined to mean either an order, made under the law of a foreign
country, for the forfeiture of property in respect of an offence against the law
of that country, or a declaration, made under the law of a foreign country,
evidencing forfeiture of property under the law of that country.
This is defined to have the same meaning as in the Mutual Assistance
in Criminal Matters Act 1987. In that Act, ‘foreign pecuniary penalty
order’ is defined to mean
an order, made under the law of a foreign
country, imposing a pecuniary penalty in respect of an offence against the law
of that country; but such an order does not include an order for the payment of
a sum of money by way of compensation, restitution or damages to an injured
person.
Foreign restraining order
This is defined to
have the same meaning as in the Mutual Assistance in Criminal Matters Act
1987. In that Act, the term means an order made under the law of a foreign
country in respect of an offence against the law of that country, which is, or
purports to be, made for the purpose of preserving property (whether or not the
order also purports to do other things). This includes an order restraining a
particular person or persons from dealing with the property, an order freezing
the property, and an order directing either the seizure of the property or that
the property be taken into official custody or control.
Foreign
serious offence
This is defined to have the same meaning as in
the Mutual Assistance in Criminal Matters Act 1987, where it means a
serious offence against a law of a foreign country.
Forfeiture
order
This is defined as an order made under Division 1 of Part
2-2; it does not include automatic forfeiture.
The proceeds of an ‘indictable offence of Commonwealth
concern’ are in some circumstances liable to forfeiture under this Act.
This definition establishes that where the proceeds of a State or
Territory indictable offence are dealt with in contravention of a specified
Commonwealth law, that State or Territory offence becomes an ‘indictable
offence of Commonwealth concern’. For this to occur, the proceeds must be
dealt with in a way that contravenes a Commonwealth law on the importation or
exportation of goods; a communication using a postal, telegraphic or telephonic
service or a bank transaction (that isn’t State banking).
Interstate forfeiture order
Retains the definition
of this phrase that appears in section 4 of the Proceeds of Crime Act
1987. The effect of declaring interstate forfeiture orders to be within the
definition, by regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern Territory or
Norfolk Island.
Interstate pecuniary penalty
order
Retains the definition of this phrase that appears in
section 4 of the Proceeds of Crime Act 1987. The effect of declaring
interstate pecuniary penalty orders to be within the definition, by regulation,
is that they can be registered and enforced in a Territory other than the
Australian Capital Territory, the Northern Territory or Norfolk Island.
Interstate restraining order
Retains the definition of
this phrase that appears in section 4 of the Proceeds of Crime Act 1987.
The effect of declaring interstate restraining orders to be within the
definition, by regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern Territory or
Norfolk Island.
Mutual Assistance Act
This means
the Mutual Assistance in Criminal Matters Act 1987. The objects of the
Mutual Assistance Act are to, amongst other things, regulate the provision by
Australia of international assistance in criminal matters when a request is made
by a foreign country for the forfeiture or confiscation of property in respect
of a foreign serious offence, the recovery of pecuniary penalties in respect of
a foreign serious offence, and the restraining of dealings in property that may
be forfeited or confiscated, or that may be needed to satisfy pecuniary
penalties imposed, because of the commission of a foreign serious offence.
Proceeds aid agreement
This term is defined by subclause
284(2) of the Act. A proceeds aid agreement is an agreement between the
Commonwealth and a State or self-governing Territory for the provision of legal
assistance to a suspect or other person by a legal aid commission. The
agreement only relates to legal assistance for a person whose assets are
restrained under the Act, and who is contesting ‘civil-forfeiture’
proceedings under the Act, or defending a criminal charge.
For a
person to seek assistance from a legal aid commission in accordance with a
proceeds aid agreement, there must be a current proceeds aid agreement between
the Commonwealth and the State or Territory in which the application for the
restraining order, forfeiture order, pecuniary penalty order or examination is
made.
A proceeds aid agreement must specify that it is an agreement made
for the purposes of the Act.
Proceeds of confiscated assets
This term identifies which funds recovered under the Bill, the
Customs Act 1901 and the Crimes Act 1914, are payable to the
Confiscated Assets Account.
Related offence
This
clause uses the same meaning of related offence as section 8 of the Proceeds
of Crime Act 1987. A related offence for the purposes of the Bill is one in
which the physical elements of the offence are substantially the same as the
physical elements of another offence. This definition ensures, for example,
that restraining orders continue to run where minor changes are made to the
charges which have been laid against a person, or where a person is convicted of
an offence other than that with which he was charged, for example, pursuant to
an alternative verdict provision.
‘Serious offence’ is defined to include a limited number of
offences, which are generally serial in nature and often use the proceeds of one
offence to commit the next.
Sub-paragraphs (a)(i)-(v) establish four types of conduct which form the
basis of a ‘serious offence’. In general terms, those offences are
drug trafficking, money laundering and serious fraud. Paragraph (b) specifies
offences against the Migration Act 1958 relating to people smuggling and
the organised harbouring of illegal entrants. Four FTR offences are also
included in the definition of ‘serious offence’ (paragraphs
(c)-(d)). Those offences are failing to provide a report about a transfer of
currency into and out of Australia, opening an account etc in a false name,
providing false or misleading information, and conducting a transaction to avoid
the reporting requirements. In addition to the defined offences, an inchoate
offence in relation to a defined ‘serious offence’ is defined by
paragraph (e) to itself be a serious offence, and paragraph (h)
allows other indictable offences to be prescribed as serious offences for the
purposes of the Bill.
A person convicted of, or found more likely than
not to have committed, a serious offence may be liable under this Bill to
forfeit all of his or her property. Accordingly, the threshold for relevant
conduct to constitute a ‘serious offence’ is set in this definition
as an indictable offence punishable by imprisonment for three years or more.
The exception to this is the selected FTR offences, some of which are
only punishable by two or more years’ imprisonment; a monetary threshold
of $50 000 together with a specific provision to enable the restraining order
to be revoked have been included as safeguards in relation to these offences.
Sufficient consideration
This clause explains what
is meant by the term ‘sufficient consideration’ when used in the
Bill.
Suspended funds
This term is used to
identify those moneys in the Confiscated Assets Account which are not available
for distribution.
Unlawful activity
Unlawful
activity encompasses State and Territory indictable offences, as well as
offences against the laws of the Commonwealth and foreign
countries.